Bombay High Court
[email protected] Trymbak Patil vs The State Of Maharashstra on 3 August, 2017
Bench: S.S. Shinde
cria285.13 & 286.13
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.285 OF 2013
Gunwant @ Dhudaku Trymbak Patil,
Age-26 years, Occu:Nil,
R/o-Sarve, Tq-Parola,
Dist-Jalgaon.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.G.V. Wani Advocate for Appellant.
Mr.V.M. Kagne, A.P.P. for Respondent - State.
...
WITH
CRIMINAL APPEAL NO.286 OF 2013
Gunwant @ Dhudaku Trymbak Patil,
Age-26 years, Occu:Nil,
R/o-Sarve, Tq-Parola,
Dist-Jalgaon.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:43:38 :::
cria285.13 & 286.13
2
...
Mr.G.V. Wani Advocate for Appellant.
Mr.V.M. Kagne, A.P.P. for Respondent - State.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 13TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 3RD AUGUST, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Criminal Appeal No.285 of 2013 is
directed against the common Judgment and order
dated 15th July, 2013, passed by the Additional
Sessions Judge, Amalner in Sessions Case No.28 of
2011 thereby convicting accused No.1/ Appellant -
Gunwant @ Dhudaku Trymbak Patil 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 fine of
Rs.5000/-, and in default, to suffer further
rigorous imprisonment for one year.
2. Criminal Appeal No.286 of 2013 is
cria285.13 & 286.13
directed against the common Judgment and order
dated 15th July, 2013, passed by the Additional
Sessions Judge, Amalner in Sessions Case No.51 of
2012 thereby convicting accused No.1/ Appellant -
Gunwant @ Dhudaku Trymbak Patil for the offence
punishable under Section 309 of the Indian Penal
Code (for short "I.P. Code") and sentencing him to
suffer simple imprisonment for six months. Both
the substantive sentences were directed to be run
concurrently.
3. In Sessions Case No.28 of 2011, original
accused Nos.1 to 5, including accused No.1 Gunwant
@ Dhudaku, have been charge-sheeted for committing
offences punishable under Section-302, 304-B,
498-A, 323, 504, 506 read with 34 of the I.P.
Code. In Sessions Case No.51 of 2012 the charge
against accused Gunwant @ Dhudaku is of attempting
to commit suicide, punishable under Section 309 of
the I.P. Code. The Additional Sessions Judge,
Amalner passed common Judgment in Sessions Case
cria285.13 & 286.13
No.28 of 2011 and Sessions Case No.51 of 2012 and
convicted and sentenced the accused Gunwant as
afore-stated, and acquitted original accused Nos.2
to 5 from the offences with which they were
charged. The accused/ Appellant has filed two
separate Appeals against the common Judgment and
order passed in Sessions Case No.28 of 2011 and
Sessions Case No.51 of 2012.
4. The prosecution case, in Sessions Case
No.28 of 2011 in brief, is as under:-
A) On 16th June, 2011 at 9.30 a.m. PW-1
Pandurang Narayan Patil, father of deceased
Surekha, resident of Khadake Sim, Taluka Erandol,
District Jalgaon lodged complaint in Parola Police
Station. He was in service as a Peon in
Grampanchayat. The deceased Surekha was his only
daughter. Her marriage was performed with accused
No.1 - Gunwant @ Dhadaku Trymbak Patil on 30th
April, 2011, in which he paid amount of Rupees One
cria285.13 & 286.13
Lakh to the accused and incurred entire expenses
of marriage. Surekha went to the house of accused
where accused No.1 and his parents, accused Nos. 2
and 3 were residing together at village Sarve.
She stayed there for one month. On 16the June,
2011, an informant received phone call from
Surekha that the accused were ill-treating her for
non-fulfillment of their demand of Rupees One Lakh
for purchasing room at Pune and they were abusing,
assaulting and threating her of dire consequences.
She informed that the ill-treatment was not
tolerable and requested to take her from the house
of accused. The informant went to the house of
accused. All accused were present there. When
the informant asked their explanation for ill-
treating Surekha, they put forth their demand of
Rupees One Lakh for purchasing room at Pune and
further stated that they will continue to ill-
treat Surekha till payment of Rupees One Lakh.
The informant expressed his inability to pay
amount, because of the expenses already incurred
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by him. The accused asked him to take Surekha to
his house. On the same day the informant took
Surekha to his house at Khadake Sim. On that day
also accused Nos.1 to 3 had beaten Surekha by fist
blows and belt.
B) It is further alleged that accused Nos.1
to 3 came to the house of the informant on 13th
June, 2011 at 8.00 a.m. They apologized and stated
that Surekha would not be ill-treated in future
for any demand. Surekha was reluctant to go with
the accused saying that her life was in danger at
the house of accused, but the informant convinced
her and sent her with the accused. On 16th June,
2011 around 2.00 to 2.30 a.m. the informant
received phone call to contact immediately to
Yuvraj, the Sarpanch of village Sarve. When he
contacted Yuvraj, he was informed that his
daughter Surekha died and he was asked to start
immediately. The informant along with his family
members, relatives, and villagers went to village
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Sarve to the house of accused. He saw deceased
Surekha lying on the Ota, i.e. veranda of the
house having injuries on her neck, abdomen, and
leg caused by sharp edged weapon. Nobody from the
family of accused was there. They took dead body
of Surekha to Parola by ambulance. Based on this
complaint, crime was registered.
C) PW-7 Madhukar S. Gavit, P.I. attached to
Parola Police Station received complaint vide
Exhibit-43 which was registered as F.I.R. for the
purpose of an investigation. He visited hospital,
where dead body by Surekha was brought. He
prepared inquest panchnama vide Exhibit-55 in
presence of panchas and sent dead body for
postmortem to Cottage Hospital, Parola. He visited
the spot of incident, which was pointed out to him
by the informant where the dead body of Surekha
was lying. The spot of incident and entire house
was inspected by the investigating officer in
presence of panchas. A knife (Article 'A') smeared
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with blood, sample of soil mixed with blood and
simple soil were collected from the spot. The
panchnama vide Exhibit-33 was drawn. Seized
property was deposited in Police Station.
Statements of witnesses were recorded. Accused
No.2 Trymbak and No.3 Kamalabai, the parents of
accused No.1 Gunwant were arrested on that day.
D) On 16th June, 2011 i.e. on the same day
PI Gavit had received information that accused
No.1 Gunwant had inflicted blows of knife on
himself and sustained injuries, for which he was
admitted in Civil Hospital, Dhule. That
information was received early in the morning
prior to lodging complaint, by Pandurang Narayan
Patil. On receipt of that information he along
with constables went to Civil Hospital Dhule. The
Medical Officer told that accused No.1 was
admitted there, but he had undergone operation on
his stomach and was not in a position to speak.
Keeping two constables there, after giving
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instructions, PI Gunwant returned to Parola.
Subsequently he received the statement recorded by
constable on 16th June, 2011 around 10.00 a.m. of
injured Gunwant when he regained consciousness in
Civil Hospital, Dhule. On the basis of that
statement, a complaint has been filed by Head
Constable Barku Jane under Section 309 of I.P.
Code in Parola Police Station around 22.05 hours
vide Exhibit-7 in Sessions Case No. 51 of 2012 and
C.R. No. 129 of 2011. On the same day as per
instructions of PI Gavit on giving requisition by
Police Constable Vanjari vide Exhibit-80 blood and
nail sample of accused Gunwant were collected.
Statements of witnesses were recorded on next day
i.e. 17th June, 2011. The clothes of accused which
he was wearing at the time of incident were
collected and produced by constable Mahajan and
those were seized as per panchnama Exhibit-58 and
those clothes includes Sando Banyan, a pant and
nicker.
cria285.13 & 286.13
E) On 21st June, 2011 the seized articles,
clothes of the deceased as well as of the accused
were sent to C.A. with letter Exhibit-62. C.A.
Reports vide Exhibit-77 and Exhibit-78 received by
the Police included in the police papers. On
completion of investigation the charge sheet was
filed in the Court of Judicial Magistrate First
Class, Parola. The offences punishable under
Section 302 and 304-B of the Indian Penal Code,
being exclusively triable by the Court of
Sessions, the case came to be committed to the
Sessions Court.
5. The prosecution case in Sessions Case
No.51 of 2002 is similar to that of Sessions Case
No.28 of 2011. In Sessions Case No.51 of 2012 the
charge against accused Gunwant @ Dhudaku is of
attempting to commit suicide punishable under
Section 309 of the I.P. Code and the weapon used
by him is same, which has been used for stabbing
his wife Surekha. It is the case of the
cria285.13 & 286.13
prosecution that on 16th June, 2011 around 3.00
to 3.15 hours P.I. Gavit attached to Parola police
station received information that a lady by name
Surekha Patil of village Sarve was killed by her
husband and the husband also attempted to commit
suicide. P.I. Gavit went to village Sarve, but
before his arrival, Surekha Patil and her husband
were already shifted to hospital. As injured was
shifted to hospital, his statement was recorded by
Head Constable Jane. He lodged complaint and Crime
under Section 309 of I.P. Code was registered
against accused. P.I. Gavit conducted further
investigation. Spot panchnama was drawn. The knife
was already seized in presence of panchas. Samples
of soil mixed with blood and simple soil were also
collected in that crime. The clothes of accused
were also seized. Statements of witnesses were
recorded. After completion of investigation, the
charge-sheet was filed.
6. In Sessions Case No.28 of 2011 a charge
cria285.13 & 286.13
for an offence punishable under Sections 302,
304-B, 498-A, 323, 504, 506 read with Section 34
of the I.P. Code was framed against the accused
persons and the same was explained to them. The
accused pleaded not guilty and claimed to be
tried. The defence of accused No.1 Gunwant is
that, he himself and his wife Surekha were
sleeping together on Otta i.e. veranda of the
house. His parents were sleeping inside the
house. 4 to 5 persons attacked them, he started
shouting. He rushed to the door of the house. His
parents opened the door, he went inside. Villagers
took him to hospital. His wife was injured and
lying on Otta, i.e. veranda of the house.
7. In Sessions Case No.28 of 2011, there
were five accused i.e. accused No.1 Gunwant @
Dhudaku Trymbak Patil, i.e. Appellant herein, his
father, accused No.2 Trymbak Zhipru Patil, his
mother, accused No.3 Kamalbai Trymbak Patil, his
brother, accused No.4 Pralhad Trymbak Patil, and
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wife of his brother, accused No.5 Ashabai Pralhad
Patil. After recording the evidence and conducting
full fledged trial, the trial Court acquitted
accused Nos.2 to 5 of all the charges levelled
against her. The trial Court also acquitted
accused No.1 Gunwant @ Dhudaku Trymbak Patil of
the offence punishable under Sections 304-B,
498-A, 323, 504 and 506 of the I.P. Code. However,
the trial Court convicted accused No.1 Gunwant @
Dhudaku Trymbak Patil for the offence punishable
under Section 302 of the I.P. Code and sentenced
him to suffer rigorous imprisonment for life and
to pay fine, as afore-stated. Hence Criminal
Appeal No.285 of 2013 is preferred by the original
accused No.1 Gunwant @ Dhudaku Trymbak Patil
challenging the conviction and sentence.
8. In Sessions Case No.51 of 2012 a charge
for an offence punishable under Section 309 of the
I.P. Code was framed against the accused Gunwant @
Dhudaku Trymbak Patil and the same was explained
cria285.13 & 286.13
to him. The accused pleaded not guilty and
claimed to be tried. The defence of accused
Gunwant @ Dhudaku Trymbak Gunwant is similar to
the defence taken in Session Case No.28 of 2011.
After recording the evidence and conducting full
fledged trial, the trial Court convicted accused
Gunwant @ Dhudaku Trymbak Patil for the offence
punishable under Section 309 of the I.P. Code and
sentenced him to suffer simple imprisonment for
six months, as afore-stated. The substantive
sentences are directed to be run concurrently.
Hence Criminal Appeal No.286 of 2013 is preferred
by original accused - Gunwant @ Dhudaku Trymbak
Patil challenging the conviction and sentence.
9. Heard learned counsel appearing for the
Appellant and learned A.P.P. appearing for the
State, at length. With their able assistance, we
have carefully perused the entire notes of
evidence so as to find out whether the findings
recorded by the trial Court are in consonance with
cria285.13 & 286.13
the evidence brought on record or otherwise.
10. First we will deal with the oral evidence
brought on record by the prosecution in Sessions
Case No.28 of 2011.
11. The prosecution examined PW-4 Pramod
Nimba Chandvade, medical officer, cottage
hospital, Parola. He deposed that on 16th June,
2011, he was posted at cottage hospital, Parola.
On that day dead body of Surekha Gunwant Patil was
brought to the hospital by police constable
Lingayat with a request to perform post-mortem and
accordingly he has carried out post-mortem over
the dead body on the very same day in between
10.45 a.m. to 11.45 a.m. and prepared his report.
The post-mortem report is at Exhibit-52. As per
his opinion deceased Surekha died due to
hemorrhage shock due to multiple stab wounds and
cut throat injury. The injuries which he found
have been mentioned in Column No.17. All the
cria285.13 & 286.13
injuries were grievous in nature and ante-mortem.
In ordinary course of nature, those injuries are
sufficient to cause death. He was shown knife. He
deposed that injuries mentioned in Column No.17
could be caused by the said knife, Article "A".
During his cross-examination, PW-4 Pramod stated
that knife Article "A" was not shown to him by
police. He further stated that the injuries
mentioned in column No.17 could be caused by any
sharp incising weapon.
12. The prosecution examined PW-1 Pandurang
Narayan Patil. He deposed that deceased Surekha
was his daughter. She had married with accused
No.1 on 30th April, 2011. In the marriage he had
given dowry of Rs.1,00,000/- and had borne all the
expenses of marriage. After the marriage, Surekha
had gone to cohabit with accused No.1 at village
Sarve, Tq-Parola. He further deposed that after
the marriage Surekha cohabited with accused No.1
nicely. Thereafter all the accused persons started
cria285.13 & 286.13
harassing deceased Surekha. They used to abuse
her, they used to assault her. Even Surekha was
assaulted by belt. All this harassment was caused
to Surekha because accused No.1 wanted to purchase
a plot at Pune. He further deposed that Surekha
used to tell him about the said demand and ill-
treatment on phone from time to time. Ultimately
on 11th June, 2011 he had been to the house of
accused persons to bring back Surekha. At that
time all the accused persons told him that unless
a sum of Rs.1,00,000/- is given, they will
continue to harass Surekha. Therefore, he brought
back Surekha to his home. He further deposed that
on 13th June, 2011, accused No.1 and his parents
came to his house. They expressed regret and
apologized and requested him to send back Surekha
assuring him that, they will treat Surekha nicely
and stop making any demand. Deceased Surekha was
not willing to go back to her matrimonial home. He
convinced Surekha to go with accused Nos.1 to 3,
she reluctantly went with them to her matrimonial
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home.
. About the incident, PW-1 Pandurang
deposed that on 16th June, 2011 at midnight, one
Indrasing Santosh Patil of Khadke-Khurd came to
him and told him that he has received phone call
and witness should speak with the Sarpanch of
village Sarve. Accordingly he spoke with the
Sarpanch who told him that his daughter Surekha
was no more. Therefore, he along with his wife and
respected persons of his village, proceeded to
village Sarve. They reached village Sarve within
15 to 20 minutes and found that Surekha was lying
dead over the Otta i.e. veranda of house of
accused persons. Upon seeing deceased Surekha, he
noticed that there were injuries all over her body
inflicted of knife. Nobody was there in the house
of accused persons. Therefore he proceeded to
Parola police station and lodged complaint. He
further deposed that after the post-mortem was
carried out, he carried the dead body of Surekha
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to his house at Khadke-sim and performed last
rituals.
. During the course of cross-examination,
PW-1 Pandurang admitted that financial condition
of accused persons was well and therefore he has
given his daughter in marriage to accused No.1. He
further admitted that the sum of Rs.1,00,000/-
which he had given them, which he referred to be
dowry, was utilized by the accused persons for the
bride and bridegroom's clothes, ornaments etc. He
admitted that he had visited matrimonial home of
deceased Surekha after her marriage only once i.e.
on 11th June, 2011. He further stated that he had
told the police that Surekha used to tell him on
phone about the harassment and ill-treatment
caused to her on account of demand of
Rs.1,00,000/- for purchasing plot at Pune, and
that Surekha had told him on phone that she was
abused and assaulted by belt and that as Surekha
was aware about his economical condition, she was
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reluctant to make demand from him of
Rs.1,00,000/-. He further stated that he had told
the police that on 13th June, 2011 the accused
Nos.1 to 3 pleaded apology and assured that
Surekha will not be harassed and there will not be
demand of Rs.1,00,000/- in future. However, he was
unable to tell as to why all the same was not
appearing in his complaint Exhibit-43. He further
stated that on 16th June, 2011 in the midnight
when he went to village Sarve, he did not enter
the house of accused persons.
13. The prosecutions examined PW-2 Pramilaba
Pandurang Patil. She deposed that Surekha was her
daughter. Surekha married with accused No.1 on
30th April, 2011 and the incident took place
within two months. She further deposed that after
the marriage, Surekha cohabited with accused No.1
for 6 to 7 days and thereafter they received phone
call of deceased Surekha informing them that
accused persons were harassing her for not
cria285.13 & 286.13
complying their demand of Rs.1,00,000/- for having
a room at Pune. Thereafter father of Surekha went
to village Sarve and brought Surekha back to their
house at Khadke-sim. After coming to their house,
Surekha told them that if the money is not given,
the accused have threatened to finish her. When
Surekha was at their house, on 13th June, 2011
accused Nos. 1 to 3 came to their house, and after
their assurance that they will properly treat
Surekha in future, they sent Surekha with accused
Nos.1 to 3. She further deposed that on 16th June,
2011, they received phone call intimating that
Surekha was no more. Therefore, they all proceeded
to village Sarve. After reaching the house of
accused persons, they found that Surekha's dead
body was kept over the Ota i.e. veranda of the
house. There were no clothes on her person and
there were knife injuries all over her body and
over her neck. None of the accused persons were
present there.
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14. The prosecution examined PW-3 Rajendra
Trymbak Patil. He deposed that he was ex-Sarpanch
of village Khadke-sim. He is president of
Tantamukti Samiti. He deposed that at the time of
marriage of Surekha, PW-1 Pandurang had no money
and therefore he had personally contributed
Rs.10,000/- towards dowry and thus he knows that
in the marriage of Surekha, an amount of
Rs.1,00,000/- was given by way of dowry. He
further deposed that on 13th June, 2011 when
Surekha was at the house of her father at Khadke-
sim, the accused persons came to the house of PW-1
Pandurang to take Surekha back to her matrimonial
home. At that time, he being a President of
Tantamukti Samiti, was called at the house of
Pandurang Patil. He had gone there, other
villagers had also gathered there. When he took
Surekha in confidence, she told him that the
accused, her husband was demanding Rs.1,00,000/-
for purchasing room at Pune and he was also
threatening to finish her. He further deposed that
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after deliberation, Surekha was sent back along
with accused persons at village Sarve. He further
deposed that on 16th June, 2011, at midnight he
learnt from Pandurang that Surekha was no more.
Therefore he alongwith Pandurang and other
persons, proceeded to village Sarve. After
reaching at village Sarve, the village of accused
persons, they found Surekha lying dead over the
Ota i.e. veranda of her house. There were injuries
over her body. The accused persons were not there,
nor any villagers were there. Therefore, Pandurang
lodged complaint in Parola police station.
. During the course of cross-examination,
PW-3 Rajendra stated that he would not be able to
tell full names of all the accused persons. He
further stated that he did not tell the police
while giving his statement that he had contributed
Rs.10,000/- for the marriage of Surekha. He
further stated that he did not tell the police
while giving his statement that the deceased
cria285.13 & 286.13
Surekha had told him that accused was demanding
sum of Rs.1,00,000/- and had threatened her of
finishing her. He admitted that he is having good
relations with the informant.
15. The prosecution examined PW-5 Yuvraj
Bhavsing Patil. He is resident of village of
accused. He deposed that the incident took place
at midnight when he was sleeping in the courtyard
of his house. At midnight he heard commotion at
the house of accused persons. Upon hearing the
commotion, he proceeded towards the house of
accused. Near the house of accused persons many
villagers had gathered. Amongst them, Himmat
Patil, Narsingh Patil and Bhivsan Visave were
there. Upon reaching there, they saw that deceased
Surekha and her husband Dhudaku, the accused No.1
were lying over the Otta i.e. veranda of their
house. Accused No.2 Trymbak and accused No.3
Kamalbai were weeping there. He asked Trymbak, the
accused No.2 as to what has happened. Trymbak told
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him that somebody has assaulted both of them and
ran away.
. Thus, this witness PW-5 Yuvraj has not
supported the prosecution, he was declared hostile
and cross-examined by the prosecution with the
permission of the trial Court. PW-5 Yuvraj was
extensively cross-examined by the prosecution but
nothing useful to the case of prosecution was
elicited. When PW-5 Yuvraj was cross-examined by
the defence, he admitted that when he reached near
the house of accused, he saw 2-3 persons were
running away and some of their villagers were
chasing them. He further admitted that the persons
who were running, were not nabbed. He further
admitted that accused No.1, who was lying over the
Ota i.e. veranda of the house, went inside his
house after arrival of vehicle and that accused
No.1 was scared.
16. The prosecution examined PW-6 Bhivsan
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Lakhan Visave. He is resident of village Sarve,
i.e. the village of accused. He deposed that the
incident took place on 15th June, 2011. In the
midnight he heard commotion at the house of
accused persons. He proceeded there. Villagers had
gathered there. Amongst them, Yuvraj, Narsingh and
Rashid Gani were there. He saw that the dead body
of Surekha was lying over the Ota i.e. veranda of
her house. Over the body of Surekha there were
stab injuries. At that time accused No.2 Trymbak
and accused No.3 Kamalbai were weeping there. They
asked Trymbak as to what happened. Trymbak told
them that his son and daughter-in-law died. At
that time accused No.1 Dhudaku was inside the
house. The door of the house was closed from
inside. They gave call to said Dhudaku. Thereafter
Dhudaku opened the door. There were stab injuries
over the body of Dhudaku. The defence declined his
cross-examination.
17. PW-7 Madhukar Sakharam Gavit, is the
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investigating officer. He deposed about the manner
in which he has carried out the investigation of
the crime.
18. Now we will deal with the oral evidence
adduced by the prosecution in the Sessions Case
No.51 of 2012.
19. The prosecution examined PW-4 Prashant
Ratnakar Deore, who is medical officer, Civil
Hospital, Dhule. He deposed that on 16th June,
2011 he was attached to Civil Hospital, Dhule. He
medically treated Dhudaku Trymbak Patil in Civil
Hospital, Dhule on that day. When Dhudaku was
brought at 5.15 a.m. on 16th June, 2011 in the
hospital, he was unconscious. He further deposed
that accused Dhudaku was brought there by his
father. The patient was examined by him. The
patient was having multiple stab injuries over his
abdomen. There were multiple incised wounds on his
both wrists. There was cut injury on the neck 10
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cm. X 2 cm. There were in all 13 stab injuries
over his abdomen. After referring to the original
case papers, he deposed that he has mentioned the
injuries found to the patient at the time of his
admission in hospital. He further deposed that the
patient was referred to General Surgeon and ENT
Specialist. The handwriting on page 5 of the case
papers is of Dr. Inamdar, ENT Surgeon. Dr. Inamdar
has written history of the case. There was injury
over the neck 8 cm. X 2 cm. There was multiple
stab injury over the abdomen. The patient was
operated for his injuries under the General
Surgeon. He further deposed that he operated the
patient as a general surgeon. He operated the
injuries on abdomen. He further deposed that
anesthesia was given before performing the
operation. He further deposed that the injuries
found on the person of the patient could be caused
by sharp edged weapon. The injuries found on the
person of patient can be self inflicted. He
further deposed that a letter was received from
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police requesting him to opine whether the patient
Dhudaku was in position to give statement on 16th
June, 2011. The patient was in a position to give
statement. He had formed the said opinion after
examining the patient. Police recorded statement
of the patient. At the time of recording statement
of patient, only patient, he himself and police
were there. Patient gave statement which was
reduced in writing. The contents were read over to
the patient and then patient put his signature
thereon. The witness was shown the knife, Article
"A". He deposed that the injuries which he found
on the person of patient are possible by the knife
shown to him.
. During the course of cross-examination,
PW-4 Prashant admitted that the injuries which he
found on the person of patient can be caused by
the assault by another person. He further admitted
that in the case papers there is no history of
self inflicted injuries.
cria285.13 & 286.13
20. The prosecution examined PW-1 Barku Zinga
Jane. He deposed that on 16th June, 2011 he was
attached to Parola police station as Head
Constable. On that day he had been to Dhule in
Civil Hospital along with P.I. Gavit for recording
statement of Dhudaku @ Gunwant Patil. He further
deposed that Gunwant was admitted there in injured
condition. Crime under Section 302 of I.P. Code
was to be registered against Gunwant. He reached
there around 8.00 to 8.30 hours. Gunwant was
unconscious and his operation was being done in
hospital. Gunwant regained consciousness around
16.00 hours. He further deposed that he recorded
statement of Gunwant in presence of Medical
Officer. Statement of injured was recorded as per
his say. Statement was read over to injured. He
obtained signature of Gunwant on the statement.
The statement is marked as X-1 for identification.
There is endorsement of the medical officer in
whose presence it was recorded. The medical
cria285.13 & 286.13
officer was present throughout recording the
statement. Medical officer signed below
endorsement before him. Thereafter he lodged
complaint. During the course of his cross-
examination, PW-1 Barku stated that investigation
in the said crime has been conducted by P.I.
Gavit. He further stated that as per his
complaint, incident of assaulting wife of accused
took place out of house of accused.
21. The prosecution examined PW-2 Yuvraj
Tarachand More. He deposed that on 16th June, 2011
he was attached to Rural Hospital, Parola as a
driver on Ambulance. On that day he was present at
his residence at Parola. He received phone call at
4.30 a.m. from Dr. Chandwale, medical officer,
Parola to attend the hospital as one patient was
there. He went in hospital and saw the patient.
The patient was having injuries on his neck, both
hands and stomach. Yurvaj Patil, Sarpanch of
village Sarve, Tq-Parola was with the patient.
cria285.13 & 286.13
After giving the primary treatment, the patient
was shifted to civil hospital, Dhule by the
Ambulance bearing No.MH-12-9233. He was not able
to recollect the name of said patient. This
witness PW-2 Yuvraj was not cross-examined by the
defence.
22. The prosecution examined PW-3 Sanjay
Bhimsing Patil. He deposed that on 16th June, 2011
around 3.00 a.m. to 3.30 a.m. Himmat Harsing Patil
came to his house and as per request of said
Himmant, he went to village Sarve for carrying
injured to hospital. He carried one injured person
from village Sarve to Rural Hospital, Parola. The
injured was having injuries on his neck, both
hands and stomach. Sarpanch and other 2-3 persons
of village Sarve were with them in vehicle. After
leaving the injured in hospital, he returned to
his house. The witness PW-3 Sanjay was not cross-
examined by the defence.
cria285.13 & 286.13
23. The prosecution examined PW-5 Madhukar
Sakharam Gavit, Police Inspector, Shanipeth police
station, Jalgaon. He was investigating officer in
the crime. He deposed about the manner in which he
carried out the investigation of the crime.
24. We have discussed in detail, the entire
evidence brought on record by the prosecution. In
order to find out whether there was any motive for
the commission of offence by the accused, we have
minutely examined evidence of PW-1 Pandurang
Narayan Patil, father of the deceased Surekha. In
his deposition he stated that all the accused
caused harassment to deceased Surekha because
accused No.1 Gunwant @ Dhudaku wanted to purchase
plot at Pune and for that purpose all the accused
wanted a sum of Rs.1,00,000/- from him. However,
during his cross-examination, he stated that
before marriage of Surekha with accused No.1
Gunwant @ Dhudaku, he had taken into consideration
the economical condition of the accused persons.
cria285.13 & 286.13
He admitted in his cross-examination that the
accused persons were financially well-off and
therefore he has given his daughter in marriage to
accused No.1 Gunwant @ Dhudaku. He further stated
that a sum of Rs.1,00,000/- which he had given to
the accused persons, was utilized by them for the
bride and bridegroom's clothes, ornaments etc.
Therefore, it follows from admissions given in the
cross-examination that the accused persons were
financially well-off and taking into consideration
the said aspect, PW-1 Pandurang agreed to perform
marriage of his daughter with accused No.1 Gunwant
@ Dhudaku. We have also considered the evidence of
PW-2 Pramilabai Pandurang Patil, mother of
deceased Surekha, and we are of the opinion that
the view taken by the trial Court of acquitting
the accused for the offence punishable under
Section 498-A of the I.P. Code is in consonance
with the evidence on record. Therefore, there does
not appear to be any motive brought on record by
the prosecution for the commission of offence by
cria285.13 & 286.13
the accused.
25. The evidence of PW-3 Rajendra Trymbak
Patil is also on the point of ill-treatment and
harassment given to deceased Surekha by the
accused. In his evidence, he stated that when they
reached to the village of accused, they found
Surekha lying dead over the veranda of her house
and accused were not there. In his cross-
examination, he stated that he did not tell to
police while giving his statement that he
contributed Rs.10,000/- for the marriage of
Surekha. He further stated that he did not tell
the police while giving statement that deceased
Surekha told him that accused was demanding the
sum of Rs.1,00,000/- and had threatened her that
in case such amount is not paid, they will finish
her. Therefore, the trial Court has rightly
discarded his evidence on the point of ill-
treatment and harassment.
cria285.13 & 286.13
26. It is true that death of Surekha was
homicidal and cause of death, as stated by PW-4
Dr. Pramod Chandvade, was "due to hemorrhagic
shock due to multiple stab wounds and cut throat
injury". However, real question is, who is author
of injuries of Surekha and her ultimate death. So
far other accused are concerned, they are already
acquitted by the trial Court, therefore, we need
not consider the defence of the other accused. The
Appellant/ accused No.1 Gunwant @ Dhudaku, in his
defence stated that, he himself and his wife
Surekha were sleeping together on Otta i.e.
veranda of the house. His parents were sleeping
inside the house. 4 to 5 persons attacked them.
He started shouting. He rushed to the door of the
house. His parents opened the door, he went
inside. His wife was injured and lying on Otta,
i.e. veranda of the house.
. Admittedly, the prosecution case rests
upon the circumstantial evidence. It is also true
cria285.13 & 286.13
that there are witnesses who have stated that they
saw the dead body of Surekha lying on the
veranda of her house, and there were stab injuries
on her person, and accused persons were not
present when the prosecution witnesses went there.
. It would be appropriate to make reference
to the evidence of PW-6 Bhivsan Visave, so as to
appreciate the defence taken by the Appellant. It
is clear from reading his evidence already
discussed in Para-16 herein above that he heard
commotion at the house of accused persons and he
proceeded there. Villagers were also gathered
there. He has also named Yuvraj, Narsingh and
Rashid Gani, who were present there. He saw that
dead body of Surekha was lying over the Otta
(veranda) of the house. Over the body of Surekha,
there were stab injuries. At that time, he saw
that accused No.2 and accused No.3 were weeping
there. He asked Trymbak i.e. accused No.2, as to
what happened and Trymbak told that his son and
cria285.13 & 286.13
daughter-in-law died. At that time accused
No.1/Appellant Gunwant @ Dhudaku was inside the
house and door was closed from the inside and then
they called Dhudaku and he opened the door. They
saw that there were injuries over the body of
Dhudaku and Trymbak did not tell anything more to
them. Therefore, it is clear from the evidence of
PW-6 Bhivsan that he immediately went to the spot
of the incident in the midnight after hearing
commotion at the house of the accused persons and
saw that dead body of Surekha was lying on the
Otta. There were stab injuries on the person of
Surekha and accused No.2 and accused No.3 were
weeping. It is true that accused No.2 and accused
No.3 have not specifically stated how Surekha
died. Nevertheless, the fact that they were
weeping and Surekha was lying on the Otta in
injured condition, has been seen by PW-6. He also
stated that Yuvraj (PW-5) was present there even
before he went to the spot of incident.
cria285.13 & 286.13
27. PW-5 Yuvraj Bhavsing Patil, in his
evidence stated that at midnight he heard
commotion at the house of accused persons. He
proceeded towards their house. He saw many
villagers gathered there. He also named Himmat
Patil, Narsingh Patil and Bhivsan Visave (PW-6)
who were present there. He also saw that deceased
Surekha and her husband Dhudaku were lying over
the Otta of their house and accused No.2 Trymbak
told that somebody has assaulted both of them and
ran away. It appears that he was declared hostile
and the A.P.P. sought permission to cross-examine
him. During his cross-examination by the A.P.P.,
he stated that the distance between house of
accused persons is 100 to 120 feet from his house.
He also stated about the injuries over the body of
Surekha. He denied that Trymbak told him that
accused No.1 threw Surekha, the deceased, in
injured condition over the Otta of the house. He
also denied that Trymbak told him that after
throwing Surekha over the Otta Dhudaku went inside
cria285.13 & 286.13
the room and bolted the door from inside. He
stated that there were injuries over the person of
Dhudaku. Surekha and Dhudaku were carried to the
hospital. He denied that he knew that accused No.1
Dhudaku has stabbed his wife Surekha. He did not
see anything else at the spot of incident. He
denied any relationship with the accused. He
stated that statement given before the police was
not read over to him and he did not read the said
statement. He stated that he told the police that
accused Dhudaku was lying in injured condition
over the otta, however he was unable to state any
reason why the said version is not appearing in
his police statement. He further stated that he
did not tell the police that Surekha alone was
lying over the Otta in injured condition. He
further stated that he cannot assign any reason as
to why police have stated in his statement that he
gave call to Dhudaku and Dhudaku opened the door
and came out. He denied that he was giving false
evidence to save the accused persons.
cria285.13 & 286.13
. It is important to note the evidence of
PW-5 Yuvraj, in cross-examination by the Advocate
for the accused. He admitted that when he reached
near the house of accused, he saw 2-3 persons were
running away and some of the villagers were
chasing them. He further admitted that the persons
who were running, were not nabbed. He further
admitted that accused No.1, who was lying over the
Otta i.e. veranda of the house, went inside his
house after arrival of vehicle and that accused
No.1 was scared. Therefore, the defence taken by
the Appellant is completely probabilized by the
admissions given by PW-5 Yuvraj in his cross-
examination. Therefore the Appellant Gunwant @
Dhudaku has discharged his onus under Section 106
of the Indian Evidence Act by offering
explanation/probabilizing his defence, which gets
complete support from the cross-examination of PW-
5 Yuvraj by the defence counsel.
cria285.13 & 286.13
28. It is trite law that the accused is not
expected to discharge onus upon him under Section
106 of the Evidence by bringing on record strict
proof, and it is sufficient if the defence taken
by him is probabilized by the preponderance of
probabilities. The Supreme Court in the case of
Ranbir Singh and others vs. State of Haryana 1 in
Para-28 of the Judgment held that:-
"28. The burden of proving self-defence is
always on the accused but it is not as
onerous as the one which lies with the
prosecution. Such burden can be discharged
by probabilising the defence. The accused
may discharge his onus by establishing a
mere preponderance of probabilities either
by laying basis for that plea in the cross-
examination of the prosecution witness or
by adducing defence evidence."
29. The Supreme Court in the case of
Ranjithan vs. Basavaraj and others2, in Para-18 of
the Judgment observed thus:
1 (2009) 16 S.C.C. 193
2 (2012) 1 S.C.C. 414
cria285.13 & 286.13
"18. In V. Subramani v. State of T.N. 3 this
Court examined the nature of this right.
This Court held that whether a person
legitimately acted in exercise of his
right of private defence is a question of
fact to be determined on the facts and
circumstances of each case. In a given
case it is open to the court to consider
such a plea even if the accused has not
taken it, but the surrounding
circumstances establish that it was
available to him. The burden is on the
accused to establish his plea. The burden
is discharged by showing preponderance of
probabilities in favour of that plea. The
injuries received by accused and whether
the accused had time to have recourse to
public authorities are all relevant
factors to be considered."
30. The Supreme Court in the case of V.D.
Jhingan vs. State of Uttar Paradesh4, in Para-4 of
the Judgment held thus:
"We are accordingly of the opinion that the
3 (2005) 10 S.C.C. 358
4 A.I.R. 1966 S.C. 1762 (V 53 C 354)
cria285.13 & 286.13
burden of proof lying upon the accused
under S.4(1) of the Prevention of
Corruption Act will be satisfied if the
accused person establishes his case by a
preponderance of probability and it is not
necessary that he should establish his case
by the test of proof beyond a reasonable
doubt. In other words, the onus on an
accused person may well be compared to the
onus on a party in civil proceedings, and
just as in civil proceedings, the Court
trying an issue makes its decision by
adopting the test of probabilities, so must
a criminal Court hold that the plea made by
the accused is proved if a preponderance of
probability is established by the evidence
led by him."
31. In Sessions Case No.51 of 2012 the
Appellant was charged for the offence punishable
under Section 309 of the I.P. Code, and
challenging the conviction and sentence for the
offence punishable under Section 309 of the I.P.
Code, the Appellant has preferred Criminal Appeal
No.286 of 2013. PW-1 Barku Jane, Head Constable
at the relevant time, attached to Parola police
cria285.13 & 286.13
station, stated in his evidence that Appellant was
admitted in the hospital in injured condition. He
reached in the hospital at about 8.00 to 8.30
hours. Appellant Gunwant @ Dhudaku was unconscious
and his operation was being carried out in the
hospital. Gunwant regained consciousness at6 about
16.00 hours. He recorded statement of Gunwant in
presence of medical officer. Statement was
recorded as per the say of accused and his
signature was obtained, after recording the
statement. Yuvraj More (PW-2), stated that when he
went to the hospital along with medical officer,
Parola, he saw accused having injuries on his
neck, both hands and stomach, and after giving
primary treatment, the patient was shifted to
civil hospital, Dhule.
32. Sanjay Patil (PW-3) also stated in his
evidence that he carried over one injured person
in the vehicle in between 3.00 to 3.30 a.m. on
16th June, 2011 and an injured was having injuries
cria285.13 & 286.13
on his neck, both hands and stomach. Sarpanch and
other 2-3 persons of village Sarve were with them
in the vehicle.
33. The evidence of the afore mentioned three
prosecution witnesses makes it clear that, they
saw this accused Dhudaku in injured condition. He
was unconscious and having injuries on neck, both
hands and stomach. The evidence of PW-4 Prashant
Deore, medical officer, is discussed in detail in
Para-19. He has categorically stated about the
injuries on the person of accused Gunwant @
Dhudaku, the manner in which he was treated and
operation was carried out. The real question to be
answered is, whether the injuries found on the
person of accused Gunwant were self inflicted or
inflicted by some other persons. While discussing
the defence taken by the accused and the evidence
of PW-5 Yuvraj Patil, we have already concluded
that the Appellant/accused No.1 Gunwant @ Dhudaku
has probabilized his defence as it is evident from
cria285.13 & 286.13
the cross-examination of PW-5 Yuvraj Patil by the
defence counsel that when Yuvraj reached near the
house of accused, he saw 2-3 persons were running
away and some of the villagers were chasing them.
34. The medical officer Prashant Deore, in
his examination-in-chief deposed that injuries
found on the person of patient can be caused by
sharp edged weapon. He further deposed that the
injuries found on the person of patient can be
self inflicted. However, during his cross-
examination, he stated that the injuries which he
found on the person of the patient i.e. Appellant,
can be caused by the assault by another person. He
admitted that in the case papers, there is no
history of self inflicted injuries. In view of the
evidence of the medical officer in his cross-
examination, the benefit of doubt deserves to be
extended in favour of the accused-Appellant. While
appreciating the prosecution case based upon the
circumstantial evidence, law is well settled. The
cria285.13 & 286.13
Supreme Court in the case of Sharad Birdhichand
Sarda Vs. State of Maharashtra5 has held that, the
prosecution must stand or fall on its own legs and
it cannot derive any strength from the weakness of
the defence. It is not the law that where there is
any infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a false
defence or a plea which is not accepted by a
Court. It is also to be borne in mind that the
case in hand is a case of circumstantial evidence
and if two views are possible on the evidence on
record, one pointing to the guilt of the accused
and other his innocence, the accused is entitled
to have the benefit of one which is favourable to
him.
35. As already observed, all the accused
persons including the Appellant were acquitted
for the offence punishable under Section 498-A of
I.P. Code. Therefore, the motive brought on record
5 (1984) 4 SCC 166
cria285.13 & 286.13
by the prosecution that on account of demand of
Rs.1,00,000/- for purchasing plot at Pune, the
accused ill-treated and harassed Surekha, gets
disappear. It is true that motive is always locked
in the mind of the accused and it is difficult to
unlock the same. However in the facts of the
present case, the accused/Appellant has
probabilized his defence.
36. In the light of discussion in foregoing
paragraphs, we are of the considered view that
the entire prosecution case rests upon the
circumstantial evidence and the evidence brought
on record by the prosecution is not cogent,
sufficient, convincing and do not inspire
confidence so as to prove the offence against the
Appellant beyond reasonable doubt. Therefore, an
inevitable conclusion is that the Appellant is
entitled for the benefit of doubt. Hence we pass
the following order:
cria285.13 & 286.13
O R D E R
(I) Both the Criminal Appeals i.e.
Criminal Appeal No.285 of 2013 and
Criminal Appeal No.286 of 2013 are
allowed.
(II) The impugned Judgment and order
dated 15th July, 2013, passed by the
Additional Sessions Judge, Amalner in
Sessions Case No.28 of 2011 convicting
and sentencing Appellant - Gunwant @
Dhudaku Trymbak Patil for the offence
punishable under Section 302 of the
Indian Penal Code, is quashed and set
aside.
(III) The impugned Judgment and order
dated 15th July, 2013, passed by the
Additional Sessions Judge, Amalner in
Sessions Case No.51 of 2012 convicting
cria285.13 & 286.13
and sentencing Appellant - Gunwant @
Dhudaku Trymbak Patil for the offence
punishable under Section 309 of the
Indian Penal Code, is quashed and set
aside.
(IV) The Appellant - Gunwant @ Dhudaku
Trymbak Patil is acquitted of the
offence punishable under Section 302
and 309 of the Indian Penal Code. Fine
amount, if deposited as per the
impugned Judgment and order, be
refunded to the Appellant.
(V) The Appellant - Gunwant @ Dhudaku
Trymbak Patil is in jail, he be set at
liberty forthwith, if not required in
any other case.
(VI) The Appellant - Gunwant @ Dhudaku
Trymbak Patil shall furnish personal
cria285.13 & 286.13
bond of Rs.15,000/- and surety of like
amount under Section 437-A of the Code
of Criminal Procedure, separately in
both the Session Cases, before the
concerned trial Court at Amalner.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
