Bombay High Court
Sambhaji Kachru Kolhe vs The State Of Maharashtra on 2 August, 2017
Bench: S.S. Shinde
cria313.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.313 OF 2013
Sambhaji s/o Kachru Kolhe,
Age-23 years, Occu:Agri.,
R/o-Khambala, Tq-Vaijapur,
Dist-Aurangabad
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Ms. Mansi N. Ghanekar Advocate for Appellant.
Mr. V.M. Kagne, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 27TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 2ND AUGUST, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 12th August, 2013, passed
by the Additional Sessions Judge, Vaijapur in
cria313.13
Sessions Case No.234 of 2012 (Old Sessions Case
No.323 of 2011) thereby convicting accused No.1/
Appellant - Sambhaji s/o Kachru Kolhe for the
offence punishable under Section 302 of the Indian
Penal Code (for short "I.P. Code") and sentencing
him to suffer imprisonment for life and to pay a
fine of Rs.5000/-, and in default, to suffer
further rigorous imprisonment for one year. The
trial Court also convicted accused No.1/ Appellant
- Sambhaji s/o Kachru Kolhe for the offence
punishable under Section 201 of the I.P. Code and
sentenced to suffer imprisonment for three years
and to pay a fine of Rs.1000/-, and in default, to
suffer further rigorous imprisonment for six
months. Both the sentences were directed to be run
concurrently. Hence this Appeal is filed by the
Appellant challenging the conviction and sentence.
2. Before the trial Court there were in all
four accused including Appellant/accused No.1 -
Sambhaji s/o Kachru Kolhe, his father accused No.2
- Kachru Baburao Kolhe, his mother, accused No.3
cria313.13
Indubai Kachru Kolhe and his brother, accused No.4
Bhaskar Kachru Kolhe. The trial Court acquitted
accused Nos.2 to 4 from the offence punishable
under Section 498-A read with 34 of the I.P. code,
with which they were charged. The trial Court also
acquitted Appellant - Sambhaji s/o Kachru Kolhe
from the offence punishable under Section 498-A of
the I.P. Code.
3. The prosecution case, in brief, is as
under:-
A) It is alleged that accused No.1 Sambhaji
on 25th May, 2011, at about 18.30 hours to 19.00
hours at the agricultural field of one Santosh
Bhusare situated in Gut No.188 in the vicinity of
village Ghaigaon, Tahsil-Vaijapur, committed
murder of deceased Mandabai and his son Bittya by
throwing them into the well after beating them and
knowing or having reason to believe that the
offence punishable under Section 302 of I.P. Code
has been committed, caused certain evidence in
cria313.13
connection with the said crime to disappear i.e.
threw dead bodies of deceased into the well with
intention to screen himself from legal punishment.
B) It is alleged that on 25th May, 2011, or
prior to that at Mauja Khambala accused No.1 being
the husband of deceased Mandabai and accused Nos.2
to 4 being her in-laws, subjected her to cruelty
on account that she was not good looking and on
account of demand of Rs.50,000/- to purchase the
land.
C) It is the case of the prosecution that
PW-1 Sahebrao is father of deceased Mandabai.
Deceased Mandabai was married to accused No.1/
Appellant on 17th April, 2008. After marriage she
was residing with the accused at Mauja Khambala.
After one year of her marriage, she delivered a
male child, namely, Bittya.
D) It is the case of the prosecution that
all the accused used to beat and abuse Mandabai on
cria313.13
account that she was not good looking. Whenever
deceased Mandabai was visiting house of PW-1
Sahebrao, she used to narrate the alleged ill-
treatment by the accused. Deceased Mandabai had
told to her father that accused were demanding
Rs.50,000/- for purchasing the agricultural land.
Sahebrao could not pay the amount of Rs.50,000/-.
Therefore, the accused used to beat and abuse
deceased Mandabai. Sahebrao had tried to convince
the accused, but in vain.
E) On 22th May, 2011 i.e. Sunday, deceased
Mandabai, her mother-in-law Indubai and her
husband accused No.1 Sambhaji had been to village
Wanjargaon for attending the marriage ceremony of
daughter of Shobha. After marriage, Mandabai and
her son Bittya stayed in the house of Sahebrao,
and accused No.1 Sambhaji and accused No.3 Indubai
had gone to village Khambala. Thereafter on 25th
May, 2011 at about 4.00 to 5.00 p.m. accused No.1
Sambhaji had been to the house of Sahebrao on
motorcycle. Accused No.1 Sambhaji in a heat of
cria313.13
anger took deceased Mandabai and deceased Bittya
with him on motorcycle. Thereafter on 26th May,
2011 Sahebrao had been to the house of accused
with luggage of his daughter Mandabai. That time
Sahebrao did not find deceased Mandabai and her
son deceased Bittya in the house of accused.
Therefore, Sahebrao made inquiry with the accused
but the accused or inmates in the house of
accused, gave evasive answers. Thereupon Sahebrao
took search of his daughter. On 27th May, 2011, in
the evening he went to the police station Virgaon
and gave missing report, Exhibit-27.
F) On the next day, Sahebrao was called in
the police station. Sahebrao had been to the
police station and then police took him to the
well situated in the vicinity of village Ghaigaon.
Said well was belonging to Santosh Bhusare. The
other villagers were also present there. The dead
bodies of deceased Mandabai and deceased Bittya
were found in the well. Their bodies were taken
out of the well. It was found that stone was tied
cria313.13
with the dead body and the dead body of deceased
Bittya was found tied with the dead body of
Mandabai. There were injuries on the mouth of
deceased Mandabai. The dead bodies were taken for
post-mortem. After post-mortem examination, their
funeral rites were performed. PW-1 Sahebrao
thereafter gave report to the police station in
respect of incident on 28th May, 2011. On the
basis of his report, the offence under Crime No.23
of 2011 came to be registered against accused for
the offences punishable under Sections 302, 201,
498-A, 323, 504, 506 read with 34 of the I.P.
Code.
G) PW-10 Suryakant Kokane, A.P.I. carried
out further investigation. On 28th May, 2011,
during inquiry, he along with panchas and staff
had gone to the well situated in the vicinity of
Siddhapurwadi, Ghaigaon. He prepared spot
panchnama Exhibit-31 in presence of panchas. He
also prepared inquest panchnamas Exhibit-32 and 33
in respect of dead bodies of Mandabai and Bittya.
cria313.13
He arrested the accused and prepared arrest
panchnamas, Exhibit-52 to 55. On 30th May, 2011
while in police custody, accused No.1 Sambhaji has
made statement that he would produce the
motorcycle and then his statement was reduced into
writing in the form of memorandum Exhibit-34.
Motorcycle came to be recovered at the instance of
accused No.1 vide Exhibit-35. A.P.I. Suryakant
Kokane also sent letter to learned Judicial
Magistrate, First Class, Vaijapur for recording
statements of witnesses under Section 164 of the
Code of Criminal Procedure and accordingly the
statements of witnesses came to be recorded.
A.P.I. Kokane collected post-mortem report and
C.A. report. After completion of investigation,
the investigating officer submitted the charge-
sheet against accused in the Court of Judicial
Magistrate, First Class, Vaijapur.
H) Since the offence punishable under
Section 302 of I.P. Code is exclusively triable by
the Court of Sessions, the case was committed to
cria313.13
the Court of Sessions for trial.
I) A charge for an offence punishable under
Section 302, 201, 498-A read with 34 of the I.P.
Code was framed against the accused and the same
was explained to them. The accused pleaded not
guilty and claimed to be tried, with the defence
of denial.
4. After recording the evidence and
conducting full fledged trial, the trial Court
convicted the accused No.1/ Appellant Sambhaji for
the offence punishable under Section 302 of the
I.P. Code and sentenced him to suffer
imprisonment for life and to pay fine, as afore-
stated. The trial Court also convicted the accused
No.1/ Appellant Sambhaji for the offence
punishable under Section 201 of the I.P. Code and
sentenced him to suffer imprisonment for three
years and to pay fine, as afore-stated. Hence this
Appeal is preferred by the Appellant challenging
the conviction and sentence.
cria313.13
5. Learned counsel appearing for the
Appellant/accused No.1, referring to the written
submissions placed on record, submits that the
trial Court acquitted all the accused including
Appellant for the offence punishable under Section
498-A of the I.P. Code and therefore motive to
commit the offence is not proved. Learned counsel
submits that motive in a case of circumstantial
evidence, plays a vital role. In support of said
submission, learned counsel placed reliance upon
the ratio laid down in the case of Ashok s/o
Sonaji Bedke vs. State of Maharashtra1.
6. Learned counsel appearing for the
Appellant further submitted that the evidence of
PW-1 Sahebrao and PW-3 Kalavati is not consistent
and reliable. She further submits that PW-3
Kalavati has not corroborated to the version of
PW-4 Vasant and PW-7 Shobhabai. She further
submits that PW-4 Vasant, for the first time on
1 2005 ALL M.R.(Cri) 965
cria313.13
29th May, 2011 stated that he had seen Mandabai
and Bittya in the company of Appellant on 25th
May, 2011. She further submits that evidence of
PW-4 Vasant, PW-7 Shobhabai and PW-8 Ajinkya on
the point of 'last seen' is not consistent and the
same cannot be relied upon. Learned counsel
further submits that the prosecution case is based
only upon circumstantial evidence and except
'last seen' no other circumstance is proved by the
prosecution. She further submits that only on the
basis of one circumstance of last seen, conviction
is not proper. In support of said submission,
learned counsel placed reliance upon the ratio
laid down in the case of the State of Maharashtra
vs. Balkrishna Mahadeo Lad2, Kanhaiya Lal vs.
State of Rajathan3, Shyamlal Saha and another vs.
State of West Bengal4 and in the case of Anjan
Kumar Sarma vs. State of Assam5.
7. Learned counsel appearing for the
2 2014 ALL M.R.(Cri) 934
3 2014 ALL S.C.R. 1542
4 2014 ALL S.C.C. 1316
5 A.I.R. 2017 S.C. 2617.
cria313.13
Appellant further submitted that PW-9 Dr. Chaitain
Tambe was unable to state as to whether death of
Mandabai and Bittya was homicidal. She further
submits that the prosecution has not brought on
record the evidence regarding the time of death.
There is no proximity in between the allegations
of taking away of deceased and the death. Learned
counsel, therefore submitted that the Appeal may
be allowed.
8. The learned A.P.P. appearing for the
State submitted that though the case of the
prosecution is based on the circumstantial
evidence, the chain of circumstances on which
reliance was placed by the prosecution has been
established beyond reasonable doubt by the
prosecution. He further invites our attention to
the evidence of PW-4 Vasant, PW-7 Shobhabai and
PW-8 Ajinkya and submits that these prosecution
witnesses have categorically stated that deceased
Mandabai and Bittya were last seen in the company
of the Appellant. He further submits that after
cria313.13
considering the entire evidence on record the
trial Court has convicted the accused and the
findings recorded by the trial Court are in
consonance with the evidence brought on record.
He, therefore submits that the Appeal may be
dismissed.
9. The prosecution examined PW-9 Dr.
Chaitain Bhagwan Tambe. He deposed that since 2007
he was working as Medical Officer at Sub District
Hospital, Vaijapur. On 28th May, 2011, dead bodies
of Manda Sambhaji Kolhe and Bittya Sambhaji Kolhe
were brought by police for post-mortem examination
at hospital. He has conducted the post-mortem
examination on the dead body of Manda Sambhaji
Kolhe. Dr. P.M. Kulkarni was also with him.
Probable cause of death of Manda was "asphyxia due
to drowning". Accordingly he has issued the post-
mortem report Exhibit-45. He further deposed that
he has conducted post-mortem examination on the
dead body of Bittya Sambhaji Kolhe. Probable cause
of death of Bittya was "asphyxia due to drowning".
cria313.13
Accordingly he has issued post-mortem report
Exhibit-46. Both the bodies were identifiable. He
was unable to state as to whether the death was
homicidal.
. During the course of cross-examination,
PW-9 Dr. Chaitain Thambe stated that in a case of
persons committing suicide, they tie their hands
or feet together or attach heavy weights to their
person before jumping into water. Nylon bag was
found around the neck and one hand of deceased
Mandabai. He has not taken any photographs. He has
not mentioned any description about the knot.
. Thus, it is clear from the evidence of
PW-9 Dr. Chaitain that probable cause of death of
Mandabai and Bittya was asphyxia due to drowning.
10. The prosecution examined PW-1 Sahebrao
Murlidhar Gagare. He deposed that deceased Manda
was his daughter. After marriage she was residing
with accused at Mouja Khambala. After one year of
cria313.13
marriage she delivered male child. Thereafter all
the accused used to beat and abuse Manda. Whenever
the deceased was visiting his house, she used to
narrate the ill-treatment of accused. She also
told him that the accused were demanding
Rs.50,000/ for purchasing agricultural land. But
he could not pay the said amount. For non-payment
of the said amount, the accused were beating,
abusing the deceased. But he had not gone to
convince them.
. PW-1 Sahebrao further deposed that about
one and half year prior to the date of recording
his evidence, there was marriage of his grand
daughter at Wanjargaon. Deceased Manda, her
husband, her mother-in-law, her son had also come
there for marriage. After marriage his daughter
and her son stayed in his house and accused No.1
and his mother had gone to Khambala. After two
days accused No.1 had come to Wanjargaon. He was
present in his field and accused No.1 took his
daughter and gone to Khambala. He stated accused
cria313.13
No.1 to wait. On the next day he had gone to
Khambala along with the luggage of his daughter.
But his daughter was not present in the house of
accused. He asked the accused about his daughter.
But the accused had not given the answer properly.
He took search of his daughter, but could not find
her. Therefore, he returned to his house.
. PW-1 Sahebrao further deposed that on
the next day he had gone to police station Virgaon
and he had lodged the missing report Exhibit-27,
of his daughter. Police called him on the next
day. Therefore he had gone to police station.
Police took him to the well at Mouja Ghaigaon. The
said well belongs to Santosh Bhusari. His
relatives and other villagers were also present
there. Police told him that the dead body of his
daughter is in the well. The dead body of his
daughter was taken out of the well. Two stones
were tied with the dead body. The dead body of his
grand-son was also tied with his daughter. He had
seen the dead bodies. There were injuries on the
cria313.13
mouth of Manda. Thereafter the dead bodies were
sent for post-mortem examination. After post-
mortem examination, their funeral rites were
carried out. Thereafter he had gone to police
station and lodged the report Exhibit-28. The
police read over his report and obtained his thumb
impression.
. During the course of his cross-
examination, PW-1 Sahebrao stated that Khambala is
at the distance of 20 K.M. from Wanjargaon. Taxi
vehicles are available to go to Khambala from his
village. He further stated how the marriage of her
daughter Manda was settled. He stated that he had
seen the house of accused No.1, his agricultural
land and thereafter he gave consent for marriage.
He further stated that Mandabai was educated upto
10th standard and the accused were intending to
employ her as Anganwadi Teacher. He further stated
that on 25th May, 2011, his daughter Manda was in
his house. He himself, his wife, his son and
others were with him working in the field. He had
cria313.13
seen that accused No.1 had come to his house. He
felt necessary to inquire with the accused No.1 as
to why accused No.1 was not ready to stay and why
he was taking Manda in haste. On 26th May, 2011,
he had gone to house of accused with clothes of
his daughter at about 4.00 to 5.00 p.m. He
inquired with the accused persons whether Manda
had come to their house and they told that she did
not come to their house. This witness was
extensively cross-examined by the defence, but
nothing useful to the defence has been elicited.
11. PW-2 Rajendra Sahebrao Dusingh is a panch
to the spot panchnama Exhibit-31. He deposed that
in his presence dead bodies were removed from the
well. He is also panch to the seizure panchnama of
motorcycle, which was hidden below the fodder and
the same was seized at the instance of accused
No.1.
12. The prosecution examined PW-3 Kalavati
Sahebrao Gagare. She deposed that deceased Manda
cria313.13
was her daughter. Marriage of Manda was solemnized
with accused No.1 on 17th April, 2008. After
marriage she was residing with accused at
Khambala. She further deposed about the alleged
ill-treatment given to her daughter Manda and
demand of Rs.50,000/- by the accused. She further
deposed that accused No.1 is hot tampered. She
further deposed that on 22nd May, 2011 the
deceased had come to Vanjargaon for marriage of
her relative, along with accused No.1 and his
mother. After the marriage, deceased along with
her son had stayed in her house. Behind their
back, accused No.1 took the deceased along with
son with him to his village. Her grand-son Ajinkya
told the said fact to her. On the next day morning
her husband had gone to village Khambala with the
clothes of Manda. He returned to house at about
10.00 p.m. and told that Manda and her son were
not present in the house of accused and the
accused were not answering properly. The dead
bodies of deceased and her son were found in well
at Sidhpurwadi Ghaigaon Shivar.
cria313.13
. During her cross-examination, PW-3
Kalavati stated that on 25th May, 2011 she along
with her husband and son were together working in
their field. Before arrival in house, they were
not knowing the whereabouts of the deceased.
13. The prosecution has examined PW-4 Vasant
Shridhar Kasar. He deposed that he knows the
complainant and he was also knowing deceased
Manda. He is resident of Vanjargaon, the village
of the informant. He deposed that on 25th May,
2011, at about 5.00 to 5.30 p.m. he was returning
from his field to his house on bullock-cart. He
had seen that accused No.1, deceased Manda and
Bittya were proceeding on their motorcycle. He
said "Ramram" to accused No.1 and accused No.1
also replied in same manner. He was knowing
accused No.1, the son-in-law of the informant. He
further deposed that on 28th May, 2011, he came to
know that the dead bodies of Mandabai and her son
were lying in the well of Shidhapurwadi-Ghaigaon
cria313.13
Shivar.
. During the course of his cross-
examination, PW-4 Vasant stated that on 29th May,
2011, at the time of recording his statement, he
had stated to police for the first time that he
had seen accused No.1 while proceeding with the
deceased Manda and her son on motorcycle. He
stated that the informant and his relatives were
taking search of Manda since 25th May, 2011 till
28th May, 2011.
. Thus, PW-4 Vasant is a natural witness
and the prosecution has brought on record through
this witness that, when he was returning from his
field in bullock-cart, at that time he had seen
accused No.1/ Appellant proceeding on motorcycle
along with deceased Manda and her son Bittya.
Thus, deceased Manda and her son Bittya were last
seen in the company of the Appellant.
14. PW-5 Kisan Haribhau Mote deposed that
cria313.13
deceased Manda was his sister in law. He deposed
about the ill-treatment to Manda at the hands of
accused. He further deposed that on 24th May, 2011
the deceased Manda had come to his house and she
stayed in his house for one day. On 25th May, 2011
Manda had gone to Vanjargaon along with her son.
On 25th May, 2011, his nephew Ajinkya met him and
told that accused No.1 took Manda and her son and
gone to his village. On 27th May, 2011 he came to
know from one Eknath Gagare that Manda and her son
were not present in her matrimonial house. During
his cross-examination, he stated that on 22th May,
2011, he had gone to attend the marriage at
Vanjargaon. After marriage his wife and he himself
returned to their village. Vanjargaon is at the
distance of 4 K.M. from Savkheda. On 26th May,
2011 he came to knwo that search of Manda was
going on. He had also taken her search.
15. The prosecution examined PW-6 Balasaheb
Sahebrao Gagare. He deposed that deceased Manda
was his sister. She was married to accused No.1 on
cria313.13
17th April, 2008. He further deposed about the
alleged ill-treatment to Manda and demand of
Rs.50,000/- by the accused persons for purchasing
agricultural land. He further deposed that on 22th
May, 2011 the deceased had come to their village
for the marriage of their relative. The deceased
had stayed in their house along with her son for
two days. After marriage accused Nos.1 and 3 left
the village. On 25th May, 2011 accused No.1 at
about 4.00 to 5.00 p.m. took the deceased with him
behind their back. On the next day his father had
gone to the house of accused along with the
clothes of Manda, at that time deceased Manda was
not present in the house of accused. On 28th May,
2011 the dead body of deceased along with her son
was found in the well at Sidhapurwadi-Ghaigaon
Shivar. PW-6 Balasaheb was extensively cross-
examined by the defence, but nothing useful to the
defence was elicited.
. Thus, prosecution has brought on record
through the evidence of PW-1 Sahebrao that on 22nd
cria313.13
May, 2011 deceased Manda along with her son came
to his house and stayed there. On 25th May, 2011
accused No.1 came to the house of PW-1 Sahebrao on
motorcycle and took his wife Manda and son Bittya
with him and left the house of Sahebrao. On 26th
May, 2011 Sahebrao had gone to Khambala along with
clothes of his daughter Manda, but Manda and her
son Bittya were not there in the house of accused.
Sahebrao inquired regarding whereabouts of Manda
and Bittya but accused/Appellant gave evasive
answers. Thereafter on 28th May, 2011 it was
noticed that dead bodies of Manda and her son
Bittya were lying in the well at Ghaigaon in the
field of Santosh Bhusari. This version of PW-1
Sahebrao is corroborated by his wife PW-3 Kalawati
and his son Balasaheb, on material particulars.
16. The prosecution examined PW-7 Shobhabai
Ashok Choudhary, on the point of 'last seen'. She
deposed that she was knowing deceased Mandabai. On
22th May, 2011 there was marriage of her daughter
Priyanka. Deceased Manda, her son and accused
cria313.13
Nos.1 and his mother came to her village
Vanjargaon for marriage. The deceased and her son
stayed in the house of the informant. Accused No.1
and his mother returned to their village. She
further deposed that after 2-3 days, at about 4.00
to 5.00 p.m. she was cleaning utensils in front of
her house. The road is in front of her house. She
had seen accused No.1, deceased and her son
proceeding on motorcycle. She called accused No.1
for taking tea but accused said that he was in
hurry and by saying so, accused had gone on his
motorcycle.
. During the course of her cross-
examination, PW-7 Shobhabai stated that from the
next day when she had seen accused No.1 with
deceased Manda, the search of Mandabai was
started. On the day of recording her statement by
police, she had stated the fact that she had seen
accused No.1 with the deceased for the first time
to the police. When the search of Manda was going
on, she felt it necessary to inform the father of
cria313.13
Manda, her brothers and villagers that she had
seen accused No.1 while proceeding with Manda with
her son.
. Thus, PW-7 Shobhabai has categorically
stated that two-three days after 22nd May, 2011,
at about 4.00 to 5.00 p.m. when she was cleaning
utensils in front of her house, she had seen
accused No.1/Appellant proceeding on motorcycle
along with deceased Manda and her son Bittya.
Thus, through the evidence of this witness PW-7
Shobhabai, the prosecution has brought on record
that on 25th May, 2011 deceased Manda and Bittya
were last seen in the company of Appellant.
During the course of her cross-examination by the
defence, her evidence is not shattered.
17. PW-8 Ajinkya Vijay Dusing is a star
witness of the prosecution case. He was about 16
years old at the time of recording his evidence
before the trial Court. He deposed that he was
taking education in 10th Standard. Deceased
cria313.13
Mandabai was his maternal aunt and Bittya was his
cousin. Accused No.1 is his uncle. He deposed that
on 25th May, 2011 he was present at Vanjargaon in
the house of his maternal uncle. Deceased Mandabai
and Bittya were also present there. At about 4.00
to 5.00 p.m. accused No.1 Sambhaji came to the
house of his maternal uncle. At that time he was
present in the house of his maternal uncle. Other
persons in the house had gone to the field.
Accused No.1 Sambhaji asked Mandabai to come with
Sambhaji. He further deposed that he told accused
to stay and he will call his grand-father and
grand-mother. But accused No.1 refused to stay.
Thereafter accused No.1 took Mandabai and Bittya
and proceeded on his motorcycle. Thereafter his
grand-father and grand-mother came to house. He
told them that accused No.1 Sambhaji took Mandabai
and Bittya with him. On the next day his grand-
father Sahebrao took the bag of Mandabai to the
house of accused No.1. Sahebrao returned to the
house in the evening and told that Mandabai was
not present in the house of accused No.1. His
cria313.13
statement was recorded by police. The J.M.F.C.,
Vaijapur also recorded his statement.
. During the course of his cross-
examination, PW-8 Ajinkya stated that he is taking
education in Sadhaguru Narayangiri Maharaj
Vidyalaya. He is well in studies. He used to
listen his grand-father, grand-mother and maternal
uncle. On the day of recording his evidence, they
all came to Court along with him. He further
stated that till the recovery of dead body of
Manda and Bittya nobody was taking their search.
On 27th May, 2011 he learnt that dead bodies of
Manda and Bittya were found. Thereafter only he
disclosed that accused No.1 took Manda and Bittya
on his motorcycle. On 25th May, 2011 and 26th May,
2011 nobody inquired with him as to where Manda
and Bittya had gone. On 25th May, 2011 after two
hours when accused No.1 took Manda and Bittya with
him, grand-father, grand-mother and maternal uncle
came to house. He was present in the house at that
time. The house of his maternal uncle is situated
cria313.13
in the field. His grand-father, grand-mother and
maternal uncle were working in the field.
. Thus, the prosecution has brought on
record through the evidence of PW-8 Ajinkya that
on 25th May, 2011 he was present at Vanjargaon in
the house of his maternal uncle. Deceased Mandabai
and Bittya were also present. At about 4.00 to
5.00 p.m. accused No.1/Appellant Sambhaji came to
the house of maternal uncle of Ajinkya. At that
time other family members had gone to the field
and Ajinkya was present in the house alongwith
Mandabai and Bittya. Thereafter Appellant took
Mandabai and Bittya and proceeded on his
motorcycle. PW-8 Ajinkya was extensively cross-
examined by the defence but nothing useful to the
defence has been elicited.
18. PW-10 Suryakant Devrao Kokane, P.S.I.
Police Station, Virgaon is the Investigating
Officer. He deposed about the manner in which he
has carried out the investigation in the crime.
cria313.13
19. We have discussed in detail, the entire
evidence brought on record by the prosecution.
The prosecution case is that on 22nd May, 2011,
deceased Mandabai along-with her son Bittya went
to the house of her father, Sahebrao. Thereafter
on 25th May, 2011, at about 4.00 to 5.00 p.m.
Appellant Sambhaji went to the house of Sahebrao
on his motorcycle and took with him deceased
Mandabai and Bittya and proceeded towards his
village. But on the way, the Appellant thrown
Mandabai and Bittya in the well situated in the
agricultural field of one Santosh Bhusare, in the
vicinity of village Ghaigaon, Taluka-Vaijapur.
Admittedly, there is no eye witness or direct
evidence in the present case and the prosecution
case is entirely based upon circumstantial
evidence. The prosecution, therefore relied upon
the following circumstances:
(i) Appellant was last seen in the
company of deceased Mandabai and
cria313.13
Bittya,
(ii) Recovery of dead bodies at the
instance of Appellant,
(iii) Recovery of motorcycle at the
instance of Appellant pursuant to his
statement under Section 27 of the
Evidence Act,
(iv) Conduct of Appellant after the
incident.
20. To prove the first circumstance of 'last
seen' the prosecution examined PW-4 Vasant, PW-7
Shobhabai and PW-8 Ajinkya. The prosecution has
brought on record through the evidence of PW-8
Ajinkya that on 25th May, 2011 when he was in the
house of his maternal uncle, Appellant came there
at about 4.00 to 5.00 p.m. and took with him
Mandabai and Bittya and left the house on his
motorcycle. The prosecution has brought on record
through the evidence of PW-7 Shobhabai that on
25th May, 2011, at about 4.00 to 5.00 p.m. when
she was cleaning utensils in front of her house,
cria313.13
she had seen the Appellant, Mandabai and her son
proceeding on motorcycle. The prosecution has
brought on record through the evidence of PW-4
Vasant that on 25th May, 2011 at about 5.00 to
5.30 p.m. when he was returning from his field to
his house on bullock-cart, he had seen the
Appellant, deceased Mandabai and deceased Bittya
were proceeding on the motorcycle. Thus, the
prosecution has proved beyond reasonable doubt,
that Mandabai and Bittya were last seen in the
company of Appellant on 25th May, 2011 at about
4.00 to 5.30 p.m. Thereafter nobody has seen them
alive. Thus, the prosecution has proved the first
circumstance of 'last seen'.
21. So far as second circumstance of
'recovery of dead bodies at the instance of
Appellant' and third circumstance, 'recovery of
motorcycle at the instance of accused', the
prosecution has brought on record through the
evidence of PW-2 Rajendra that the dead bodies of
Mandabai and Bittya were recovered from the well
cria313.13
at the instance of the Appellant and further the
motorcycle was recovered at the instance of
accused which was concealed below the fodder in
the field. The Investigating Officer PW-10
Suryakant Kokane also stated in his evidence that
dead bodies of Mandabai and Bittya were recovered
from the well at the instance of Appellant and
the motorcycle was also recovered at the instance
of Appellant. Thus, the prosecution has proved the
second and third circumstance.
22. So far as fourth circumstance i.e.
'conduct of the accused/Appellant after the
incident' is concerned, the prosecution has proved
the said circumstance through the evidence of PW-1
Sahebrao. On the next day of the incident, i.e. on
26th May, 2011 when Sahebrao visited the house of
accused, Mandabai and Bittya were not present in
the house of accused. When Sahebrao inquired
regarding the whereabouts of Mandabai and Bittya,
he gave evasive answers. Thus, though the case of
the prosecution is based on the circumstantial
cria313.13
evidence, the chain of circumstances on which
reliance was placed by the prosecution has been
established beyond reasonable doubt by the
prosecution.
23. In the facts and circumstances of the
present case, the prosecution has proved beyond
reasonable doubt, that Mandabai and Bittya were
last seen in the company of Appellant on 25th May,
2011 at about 4.00 to 5.30 p.m and thereafter
nobody has seen them alive. Therefore the onus
lies on the Appellant to explain what happened to
Mandabai and Bittya after they were last seen in
the company of the Appellant. In this respect, the
Appellant has not offered any explanation. The
Supreme Court in the case of Deepak Chandrakant
Patil vs. State of Maharashtra6, in Para-15 held
thus:
"15. In the instant case, we are satisfied
that the trial court and the High Court
rightly appreciated the evidence on record
and the circumstances proved against the
6 (2006) 10 S.C.C. 151
cria313.13
appellant conclusively prove his guilt.
Mere fact that there is no evidence to show
that he actually assaulted the deceased may
not be of any consequence in the facts and
circumstances of this case. We may only
observe that in the face of the reliable
evidence on record that the deceased had
accompanied him at 10.30 p.m. on 29-12-
1998, the accused-appellant did not offer
any explanation as to whether they parted
company thereafter. The fact that he knew
about the dead body of the deceased lying
in the garden behind the house of A-1 is
almost clinching in nature and leaves
nothing to doubt. Having considered the
evidence on record, we are satisfied that
there is no justification for interference
with the order of conviction and the
sentence imposed on the appellant. This
appeal is, therefore, dismissed."
24. The Supreme Court in the case of Ashok
vs. State of Maharashtra7, in Para-12 held thus:
"12. From the study of abovestated
judgments and many others delivered by this
Court over a period of years, the rule can
be summarised as that the initial burden of
7 (2015) 4 S.C.C. 393
cria313.13
proof is on the prosecution to bring
sufficient evidence pointing towards guilt
of the accused. However, in case of last
seen together, the prosecution is exempted
to prove exact happening of the incident as
the accused himself would have special
knowledge of the incident and thus, would
have burden of proof as per Section 106 of
the Evidence Act. Therefore, last seen
together itself is not a conclusive proof
but along with other circumstances
surrounding the incident, like relations
between the accused and the deceased,
enmity between them, previous history of
hostility, recovery of weapon from the
accused, etc. non-explanation of death of
the deceased, may lead to a presumption of
guilt."
25. The Supreme Court in the case of Rohtash
Kumar vs. State of Haryana8, in Para-34 held thus:
"34. Thus, the doctrine of "last seen
together" shifts the burden of proof on the
accused, requiring him to explain how the
incident had occurred. Failure on the part
of the accused to furnish any explanation
in this regard, would give rise to a very
8 (2013) 14 S.C.C. 434
cria313.13
strong presumption against him."
26. The trial Court has considered the entire
evidence brought on record and observed in Para-56
of the impugned Judgment that, prosecution has
succeeded in bringing home guilt to the accused
No.1 for the offence of committing murder. It is
established that accused No.1 had intention to
cause death of his wife Manda and his son Bittya.
He committed murder intentionally and knowingly
causing the death of his wife Manda and son Bittya
by throwing their dead bodies into the well and
for hiding evidence. The trial Court has further
observed that all the circumstances proved by the
prosecution clinchingly established the
culpability of accused No.1 and nobody else. These
established circumstances wholly rule out any
reasonable possibility of innocence of accused
No.1 from any point of view in respect of the
offence of murder. In other words, chain of other
circumstantial evidence is so complete against
accused No.1 as to rule out any other hypothesis
cria313.13
about his innocence. Prosecution has succeeded in
bringing home guilt of accused No.1 for the
offence of committing murder of his wife Manda and
his son Bittya and for hiding evidence. The trial
Court has convicted the Appellant/accused for the
offence punishable under Section 302 and also
under Section 201 of the I.P. Code and sentenced
him, as afore-stated.
27. Learned counsel appearing for the
Appellant submitted that PW-9 Dr. Chaitain Thambe
deposed in his examination-in-chief that he cannot
say as to whether the death was homicidal, and
therefore she submits that the prosecution has
not established that death of Mandabai and Bittya
was homicidal.
28. While considering the point, whether
prosecution proved that deceased Mandabai and
Bittya met with homicidal death, the trial Court
has observed that even upon the evidence presented
at the trial it seems that two bodies of deceased
cria313.13
Mandabai and deceased Bittya were taken out of the
well situate in Gut No.188 in the vicinity of
Ghaigaon Shivar in the agricultural land of
Santosh Bhusare. This fact has not been seriously
disputed. The trial Court further observed that,
the evidence of Medical Officer Dr. Chaitain
Thambe shows that he conducted the post-mortem on
the dead bodies of Mandabai and Bittya and as per
the opinion of Medical Officer, cause of death of
both the deceased was "asphyxia due to drowning".
The trial Court further observed that death of
Mandabai and Bittya was unnatural and homicidal.
The trial Court further observed that inquest
panchnama mentions that there were some abrasions
on the dead bodies and the dead body of Mandabai
was found tied with stone by means of cotton sari
and dead body of Bittya was also found tied with
the dead body of Mandabai by clothes. Thus, the
trial Court after considering the evidence of
Doctor Chaitain Thambe (PW-9) coupled with the
contents of inquest panchnama and post-mortem
report, held that the death of Mandabai and Bittya
cria313.13
was homicidal. We have also independently perused
the evidence of Medical Officer PW-9 Chaitain
Thambe, inquest panchnamas and post-mortem reports
of deceased Mandabai and Bittya, and find that the
findings recorded by the trial Court are in
consonance with the evidence brought on record and
the prosecution has proved that death of Mandabai
and Bittya was homicidal. Though specific opinion
is not expressed by the Medical Officer that death
was homicidal, nevertheless, he has stated the
cause of death was "asphyxia due to drowning". The
circumstances brought on record by the prosecution
clearly suggests that death of Mandabai and Bittya
was homicidal. The Supreme Court in the case of
Machindra vs. Sajjan Galpha Rankhamb and others9 in
Para-15 of the Judgment, held that:
"Expert's opinion should be demonstrative
and should be supported by convincing
reasons. Court cannot be expected to
surrender its own judgment and delegate its
authority to a third person, however great.
If the report of an expert is slipshod,
9 2017(5) SCALE 70
cria313.13
inadequate or cryptic and information on
similarities or dissimilarities is not
available in the report of an expert then
his opinion is of no value. Such opinions
are often of no use to the court and often
lead to the breaking of very important
links of prosecution evidence which are led
for the purpose of prosecution."
29. Learned counsel appearing for the
Appellant submitted that the prosecution has not
proved that the accused has committed an offence
punishable under Section 498-A of the I.P. Code.
Therefore, there is no any motive brought on
record by the prosecution for commission of
alleged offence by the Appellant. In this respect,
it would be apt to make reference to the judgment
of the Supreme Court in the case of Mulakh Raj and
others Vs. Satish Kumar and other10 wherein in para
17 it is held, as under:
"17. The question then is, who is the
author of the murder? The contention of Sri
Lalit is that the respondent had no motive
and the High Court found as a fact that the
10 (1992) 3 SCC 43
cria313.13
evidence is not sufficient to establish
motive. The case is based on circumstantial
evidence and motive being absent, the
prosecution failed to establish this
important link in the chain of
circumstances to connect the accused. We
find no force in the contention.
Undoubtedly in cases of circumstantial
evidences motive bears important
significance. Motive always locks up in the
mind of the accused and some time it is
difficult to unlock. People do not act
wholly without motive. The failure to
discover the motive of an offence does not
signify its non-existence. The failure to
prove motive is not fatal as a matter of
law. Proof of motive is never an
indispensable for conviction. When facts
are clear it is immaterial that no motive
has been proved. Therefore, absence of
proof of motive does not break the link in
the chain of circumstances connecting the
accused with the crime, nor militates
against the prosecution case. The question,
therefore, is whether Satish Kumar alone
committed the offence of murder of his
wife? In this regard Sri Lalit pressed into
service the evidence of DW 4, the uncle of
the respondent who stated that respondent
1, his brother and father were in the shop
at the relevant time and that the
cria313.13
respondent also stated so in his statement
under section 313 C.P.C. This evidence
clearly establishes that the respondent was
not at home when the occurrence had taken
place. This evidence has to be considered
in the light of the attending circumstances
and the conduct of Satish Kumar. It is
established from the evidence that the
deceased and the first respondent alone
were living in the upstair room. The
occurrence took place in the broad day time
in their bed room. The deceased at that
time was having three months old child.
What had happened to the child at the time
when the ghastly occurrence had taken place
is anybody's guess. Normally three months
child would be in the lap of the mother
unless somebody takes into his/her lap for
play. It is not the case. It would be
probable that after the murder, the child
must have been taken out and the dead body
was burnt after pouring kerosene and
litting fire. Therefore, the one who
committed the offence must have removed
the child later from the room. Admittedly
the day of occurrence is a Sunday and
that too in the afternoon. Therefore, the
shops must have been closed. DW 2, Post
Office Superintendent, examined by the
defence, categorically admitted that the
handwriting of all the four telegrams was
cria313.13
of the same person. Satish Kumar admitted
that he issued two telegrams including the
one to PW 15 and the two were issued by
his father. Therefore, four telegrams were
issued by respondent 1 alone. When the wife
was practically charred to death an
innocent and compassionate husband would be
in a state of shock and would not move
from the bedside of the deceased wife and
others would attend to inform the
relations. It is also his case that he
phoned to the police station and informed
of the occurrence. Evidence is other way
about. An attempt was made to have the
matter compromised, but failed. Thereafter
they were found to be absconding. The
evidence of DW 4 (maternal uncle) that
respondent 1 was in the shop thus gets
falsified and his is a perjured evidence.
This false plea is a relevant
circumstance which militates against his
innocence. The death took place in the
bedroom of the spouse and the attempt to
destroy the evidence of murder by burning
the dead body; the unnatural conduct of
Satish Kumar, immediately after the
occurrence; the false pleas of suicide and
absence from house are telling material
relevant circumstances which would complete
the chain of circumstantial evidence
leading to only one conclusion that Satish
cria313.13
Kumar alone committed the ghastly offence
of murder of his wife, Shashi Bala."
30. In the light of discussion herein above,
on independent and in-depth scrutiny of entire
evidence, we are of the opinion that the trial
Court has considered all the evidence brought on
record in its proper perspective and recorded the
findings which are in consonance with the evidence
on record and convicted the Appellant/ accused.
The conclusions reached by the trial Court are in
consonance with the evidence brought on record by
the prosecution. There is no perversity as such.
31. In the light of discussion herein above,
we are of the opinion that there is no merit in
the Appeal. The Criminal Appeal stands dismissed.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
