The State Of Maharashtra vs Shivaji Bhujanmgrao Ukirde
2017 Latest Caselaw 9374 Bom

                                                  Cri. Appeal No. 505/2001
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 505 OF 2001

The State of Maharashtra
Through the Police Inspector,
Police Station Karmad,
Aurangabad.                                  ....Appellant.

               Versus


Shivaji s/o. Bhujangrao Ukirde,
Age 41 years, Occu. Agri.,
R/o. Karmad, Tq. Dist. Aurangabad.           ....Respondent.


Mr. V.S. Badakh, APP for appellant/State.
Mr. C.P. Sengaonkar, Advocate for respondent.


                                CORAM   : T.V. NALAWADE AND
                                          ARUN M. DHAVALE, JJ.

RESERVED ON : 09/11/2017 PRONOUNCED ON : 07/12/2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 42/2001, which was pending in the Court of Ad-

hoc Additional Sessions Judge, Aurangabad. The Trial Court has

acquitted the present respondent, husband of deceased Gangabai

and also the first wife of present respondent of the offences

punishable under sections 302, 498-A r/w. 34 of Indian Penal Code

(hereinafter referred to as 'IPC' for short). The State has challenged

the decision of acquittal given in favour of the respondent only. Both

Cri. Appeal No. 505/2001

the sides are heard.

2) In short, the facts leading to the institution of the

present proceeding can be stated as follows :-

Deceased Gangabai was a daughter of Vithalrao, who

was resident of village Dhudad, Tahsil and District Aurangabad. The

deceased was given in marriage to respondent Shivaji about 10

years prior to the date of incident. Gangabai has left behind one

daughter, aged about 9 years and one son aged about 5 years, born

out of her marriage with the present respondent. The respondent

had married with Gangabai as he had no issue from first wife

(original accused No. 2). The respondent is resident of village

Karmad, Tahsil and District Aurangabad.

3) Both the accused persons had suspicion about the

character of the deceased. The suspicion increased after the birth of

issues to the deceased and they started giving illtreatment to the

deceased. The respondent used to give beating also to the deceased.

The relatives of the deceased from parent's side had tried to

convince the respondent and his first wife to behave well, but their

conduct did not improve and they continued to give illtreatment due

to their suspicion.

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4) Fifteen days prior to the date of incident, respondent

gave severe beating to the deceased. The father of respondent felt

that there was danger to the life of Gangabai and so, he reached

Gangabai to the house of her parents. After 7-8 days, the husband,

respondent visited the house of parents of the deceased and he took

the deceased back to the matrimonial house. After that for one day

the deceased had visited the house of her parent's and she had

returned to the matrimonial house. The incident took place on

27.3.2000 when the deceased was cohabiting with respondent.

5) On 27.3.2000 at about 6 p.m. to 7 p.m. Haribhau,

brother of respondent informed to Sarpanch of Karmad Shri.

Bhaurao Mule that dead body of Gangabai was lying in the house

situated by the side of tank. Sarpanch passed this information to

Police Patil, police and to the parents of deceased on 27.3.2000

itself. The relatives of deceased including the first informant, brother

of the deceased rushed to Karmad. The relatives of deceased, police

and panchas went to the house which is situated in the land of the

respondent which is used only for keeping agricultural implements

etc. on the night between 27.3.2000 and 28.3.2000. PSI Ghodke

also went to this house. They noticed that the house was closed

from outside by putting chain and locked from outside, but the key

to the lock was with the lock. They opened the door by using the key

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and then they entered the house which consist of one room.

6) Police, Panchas and also the relatives of deceased on

parent's side noticed that the dead body of Gangabai was lying in

this house and there were bleeding injuries on the head. Pieces of

broken bangles of deceased were lying in scattered condition there.

The article, hoe and other articles, implements were lying there.

There was blood on the handle of hoe. One chit having hand writing

of accused, informing that he also wanted to finish himself by

committing suicide was found on the spot. All these articles were

taken over when spot panchanama was drawn. Inquest panchanama

was prepared in this house and the dead body was referred for P.M.

examination. Doctor gave opinion that the death took place due to

both head injuries and strangulation.

7) Police searched for accused, respondent on 28.3.2000,

but the accused was not available at his residential place from

village and nobody knew whereabouts of the accused. Then the

search of house of accused situated in the village was taken. In this

house, one more chit was found in which the accused has admitted

that he had finished his wife in aforesaid house and he wanted to

commit suicide. In the first chit recovered from the farm house, the

accused had described the well where he wanted to commit suicide.

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Search of that well was also taken, but nothing was recovered from

the well.

8) On 28.3.2000 brother of deceased gave report and the

crime came to be registered on the basis of this report. During the

course of investigation, statements of relatives of deceased on

parent's side came to be recorded. The statement of Sarpanch and

some other persons from village Karmad came to be recorded. Police

arrested the accused on 29.3.2000 when he was traced. During

investigation, it transpired that on the night between 27th and 28th,

the accused was living in the lodge from Badnapur. There were blood

stains on the clothes of the accused and so, the clothes were taken

over under panchanama.

9) As two chits were recovered by the police, specimen

hand writing of the accused was collected by the police in presence

of panch witnesses. One note containing the account written by the

accused was also recovered. These articles came to be sent to the

hand writing expert for comparison.

10) The statement of the lodge owner where the accused

had slept on the night between 27.3.2000 and 28.3.2000 came to be

recorded. Test identification parade was arranged for giving an

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opportunity to the lodge owner to identify the accused as accused

had stayed there by giving fictitious name. The remaining articles

which were taken over from the spot of offence were sent to C.A.

office and after completion of investigation, chargesheet came to be

filed against the present respondent and his first wife for aforesaid

offences. The charge was framed for aforesaid offences and the plea

was recorded. Both the accused pleaded not guilty. The prosecution

examined in all 14 witnesses. Both the accused took the defence of

total denial. No defence evidence was given.

11) The Trial Court has held that it is homicide. The Trial

Court has held that the aforesaid two chits are in the hand writing of

the respondent, accused. The Trial Court has held that on the clothes

of the accused, which were taken over by the police, there were

blood stains. The Trial Court has given acquittal by giving reason

that prosecution has not produced the record to prove the ownership

of the accused over the house where the dead body was found and

the prosecution has not proved that the room was in the occupation

of the accused.

Homicidal Death and other evidence particularly on custodial death :-

12) The defence has not disputed that it is a case of

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homicide. Inquest panchanama at Exh. 18 is proved in the evidence

of Bhausaheb Choudhary (PW 2), who is cousin of deceased. The

evidence is given on inquest also by Investigating Officer Ramesh

Ghodke (PW 14). It appears that most of the panch witnesses used

by police in the present matter are close relatives of deceased. This

circumstance is being discussed separately at later stage. For

consideration of the evidence given on inquest panchanama, this

circumstance needs not be considered as the defence is not

disputing that it is a homicide.

13) In inquest panchanama, Exh. 18, there is mention of

bleeding injury of length of 4 inches and of the depth of ½ inche on

the head. Some injuries were noticed on throat and right leg. No

injury was noticed on private part. The panchas formed opinion that

the death took place due to head injury.

14) Dr. Rathod (PW 10) has given evidence on P.M. report.

He conducted the P.M. examination on 28.3.2000 between 11.30

a.m. and 12.30 noon. He found following antemortem injuries on the

dead body.

(i) C.L.W. over top of head horizontal, irregular edges,

rag, blood-stained, fractured bone pieces were present, 9½

x 4.30 cms x bone deep.

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(ii) CLW over left mid-line 1 cm above injury No. 1,

vertical 1 cm left to mid line 3 x 1½ cm x bone deep,

(iii) Injuries over neck

(a) Abrasion horizontal on right side of neck, at the

level of thyroid, cartidge 4 x 1 cm, on dissection,

haemorrhage preset under-neath the skin,

(b) Contusion on left side on neck at the level of

thyroid cartilege and above 3 cms from mid line, 3 x 2

cms,

(c) 4 cms above injury No. (b) abrasion over left

mandibular region, 1x1 cm, on dissection-

haemorrhage present in muscles on left part of thyroid

cartilege.

(iv) Abraded contusion on left leg, anteriorly in middle

part, 3 x ½ cms.

(v) Contusion over left calf laterally in middle part 7 x 3

cms,

(vi) Multiple abrasions over injury No. 5, in area of 10 x 3

cms, of different sizes,

(vii) CLW over right leg anteriorly in middle part, 1½ x 1

cm.

(viii) 5 cms below injury No. 7, abraded contusion 1½ x 1

cm.

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On internal examination, Dr. Rathod (PW 10) noticed following

injuries.

(i) Skull-vault fractured into pieces, at vertex, irregular,

round shape, size 5 cms.

(ii) Fracture lines radiating along (a) coronal suture on

right upto base of middle carnial fossa, (b) on left upto 6

cm, (c) along sagittal suture upto 6 cms and (d) 5 cms to

left parietal bone.

(iii) Brain was found - contused - both parietal lobe mid

line, brain matter congested and oedematous.

Dr. Rathod (PW 10) has deposed that the death took place due to

head injuries and also due to strangulation. The P.M. report at Exh.

39 is consistent with the oral evidence given by Dr. Rathod and the

final opinion at Exh. 40 is also given by this doctor.

15) In the cross examination of Dr. Rathod (PW 10), it is

brought on the record that the doctor gave opinion that the injuries

on the head and also strangulation caused the death as he felt that

there are both the probabilities viz. the death due to strangulation

and the death due to head injury. In the cross examination, it is

brought on the record that injury Nos. 1 and 2 found on the head

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can be caused by hard and blunt object even like a stone. It is not

the suggestion of the defence that these injuries were sustained

accidentally. Thus, the evidence on the record is more than sufficient

to prove that it is homicide. The evidence further shows that the

person who caused these injuries wanted to finish the deceased

anyhow.

16) Bhagwan (PW 1) is real brother of deceased and he gave

report on 28.3.2000. Tejrao (PW 4) is cousin brother of deceased

and Antikabai (PW 7) is the mother of the deceased. They have

given evidence that the deceased was cohabiting with the

respondent, husband at the relevant time. Their evidence shows that

the deceased had returned to matrimonial house about 7-8 days

prior to the date of incident. Mule (PW 11), Sarpanch of the village

Karmad has given evidence that it is the brother of the husband,

who informed him that Gangabai was dead. From the evidence of

Sarpanch, it can be gathered that the place where the dead body

was lying was also informed by the brother of husband, accused. In

the cross examination of the close relatives of deceased on parent's

side, the defence has brought on the record that accused No. 2, first

wife of present respondent, accused was living at Aurangabad with

two issues born to the deceased and the deceased was living with

respondent in village Karmad. It is also brought on the record that

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respondent used to visit Aurangabad occasionally as the issues were

kept for education at Aurangabad. Prosecution examined one

Tulsabai (PW 13), who is immediate neighbour of the respondent in

the village. But, she has turned hostile. In any case, the respondent

has not disputed that at the relevant time, the deceased was

cohabiting with him in village Karmad. In view of these

circumstances and the provision of section 114 of the Evidence Act,

this Court is expected to keep in mind the things which happen in

ordinary course of nature.

17) The Trial Court has given acquittal by giving reason that

the prosecution has not proved that the house where the dead body

was found, the incident took place belongs to present respondent,

husband. In this regard, the evidence brought on the record during

cross examination of Bhagwan (PW 1) is important. It is brought on

the record that after the marriage, he had visited the place where

the dead body was found as it belongs to accused and the house is

situated in the land of accused. He has deposed that on the night

between 27.3.2000 and 28.3.2000 he visited this house second

time. Thus, he has specifically stated that the land and the house

belong to respondent, accused. In the cross examination, it is

suggested to him that this land is acquired by the Government for

the purpose of tank. The witness has shown ignorance about it.

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Thus, the defence has not disputed that the land belongs to

respondent and the house where the dead body was found also

belongs to respondent and it was in occupation of respondent.

18) Prosecution has examined Bhausaheb Choudhary (PW

2), cousin brother of deceased to prove the spot panchanama, Exh.

19. In the cross examination of this witness, it is brought on the

record that the first informant and some other relatives of the

deceased were with police when they all went to aforesaid house for

preparing spot panchanama, inquest panchanama etc. Bhausaheb

(PW 2) and other cousin of deceased namely Tejrao (PW 4) have

given evidence on the things noticed by them in this house when

they visited the house on the night between 27.3.2000 and

28.3.2000. The record and substantive evidence show that the

inquest panchanama was prepared between 4.15 a.m. and 5.00

a.m. of 28.3.2017 and the spot panchanama was prepared between

6.30 a.m. and 7.30 a.m. of 28.3.2000.

19) In the spot panchanama at Exh. 19, the things which

were noticed by panchas are described as follows :-

(i) The house is situated in the land Gat No. 235. It is

having one room. The house is constructed in bricks, but it

has roof of tin sheets. It has one door and one window.

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(ii) The door of house was found to be closed and locked

from outside, but the key to the lock was with the lock.

(iii) Inside of the house, the room, there were agricultural

implements including a tank meant for spraying

insecticides.

(iv) The house was in use as it was showing that recently

the floor was cleaned by using cow-dung.

(v) In the middle of room, there were blood stains and

pieces of broken bangles were lying in scattered condition.

(vi) One hoe was lying there and there was blood on the

handle of hoe. One chit having blood stains was also lying

there and some hair of the deceased in loose condition

were lying on the floor.

(vii) The chit which was lying in this house was having the

matter like, "I am also putting an end to my life by jumping

in the well of Bodki". [ ehlq/nk cksMdhP;k foghjhe/;s vkRegR;k djhr

vkgs ]. Under this writing, there was signature of respondent

in English by using the name as Shivaji.

20) The spot panchanama shows that there was

arrangement to tether cattle in front of aforesaid house, but no

blood was found outside of house and in the vicinity of house. Blood

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was found only inside of the house. Thus, the spot panchanama

shows that murder was committed inside of house. The circumstance

that when police and panchas reached the spot, the house was

found in locked condition from outside creates a probability that it

was the job of insider and not of outsider. The outsider cannot have

any reason to put lock from outside to the door of house if he had

any reason to murder Gangabai. The evidence of Sarpanch to the

effect that brother of respondent informed about this place and the

death of Gangabai shows that only the relatives of the respondent

knew about the death of Gangabai. The evidence of the witnesses

including Ghodke (PW 14), Investigating Officer shows that on that

night police could directly go to this house as the information was

given by Sarpanch about the place where the dead body was lying

and as the house belongs to accused.

21) It is not disputed by all the close relatives of the

deceased including the first informant Bhagwan (PW 1) that after

learning about the death of Gangabai, they went to spot with police

on that night. In the cross examination of Bhagwan (PW 1), it is

brought on the record that he knew that it was the house of

accused as he had visited the house in the past. The room was in

use and so, there is sufficient evidence to infer that the aforesaid

house belongs to the accused, respondent and it was used by the

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accused, respondent. In view of the suggestion given by defence

that the land and the house were acquired by the Government from

accused, it was necessary for him to produce the relevant record,

but that is not done. Even if that record was available, the inference

of use was possible as ordinarily when there is no sufficient back

water and the land is not submerged, the farmers who were owners

in the past, continue to cultivate that portion and use the structure if

it is not pulled down after acquisition. In any case, when there is no

record of acquisition, other probabilities are not required to be

considered.

22) The aforesaid discussion shows that there is the evidence

showing that the aforesaid place belongs to accused and it was in

use of accused. Thus, there was no necessity of production of any

record in respect of the land and the house. The Trial Court has

committed serious error in holding that prosecution has failed to

prove that the land and the house belong to accused as no record is

produced in that regard. The aforesaid evidence is not less than the

evidence required for proving the case of custodial death. Thus, the

provisions of sections 106 and 114 of the Evidence Act are available

in the present matter against the accused, respondent, but the

accused has not offered any explanation.

Cri. Appeal No. 505/2001

23) The evidence of Bhausaheb (PW 2) shows that after

preparing spot panchanama, they went to Bodki well situated at the

distance of 2000 ft. from this house. Police visited that spot as the

well was mentioned in the chit recovered from the aforesaid house.

However, other evidence shows that prior to visiting the well, police

went to residential place of accused situated in the village to

ascertain as to whether he was available in the house. The

panchanama in respect of well is proved as Exh. 20. Nothing was

recovered like dead body of respondent from the well. This

panchanama was prepared between 16.15 hours and 16.30 hours.

But, prior to that the search of house of accused was taken and that

is being discussed at later place. Though nothing was recovered

from the well, the circumstance like preparation of panchanama at

Exh. 20 shows that everybody believed in the contents of the chits

and they took all the steps to see as to whether the accused had

committed suicide. This circumstance shows that no attempt was

made of concoction and nothing has arisen out of imagination of

Investigating Officer or others.

24) The evidence of Pandurang Choudhary (PW 8) shows

that on 28.3.2000 search of the house of respondent, accused was

taken. His evidence shows that articles like a chit and a note

containing account written by the accused were taken over from the

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house under panchanama at Exh. 34. There is mention of testing of

the cot of the residential place to ascertain as to whether there was

electric current as there was such mention in this second chit, which

was left by the accused. The evidence of this witness shows that

police had gone to the house of the accused to ascertain as to

whether he is available at home. This witness is also from the Bhavki

of the deceased. There is evidence of Ghodke (PW 14), Investigating

Officer also on Exh. 34.

25)               The contents of Exh. 34 are as under :-

            (i)      Stop; there is current of electricity in the cot.

            (ii)     I have murdered her in the room from the field.

            (iii)    I am committing suicide.

This panchanama was prepared between 15.00 hours and 15.30

hours of 28.3.2000.

26) The contents of aforesaid chit and the circumstances

already mentioned show that after ascertaining that the accused was

not available at his residential place, at village, police went to the

well mentioned in the first chit to see as to whether the accused had

really committed suicide. The investigation made and the record like

panchanama show that nothing was recovered from the aforesaid

well. Thus, the accused, respondent had left the aforesaid chits, but

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he had not committed suicide and he was not traceable. Such

evidence is given by Investigating Officer Ghodke (PW 14).

27) The evidence of Investigating Officer Ghodke (PW 14)

shows that police could trace the accused on 29.3.2000. Evidence is

given that after the arrest of accused, respondent, police obtained

specimen hand writing of the accused in the presence of panch

witnesses on 31.3.2000. Tejrao (PW 4) has given evidence as panch

witness and the 12 papers on which the specimen hand writing was

obtained are on the record as D-1 to D-12. The panchanama of

taking specimen hand writing is proved as Exh. 35 in the evidence of

these two witnesses.

28) It is not specific case of the accused that he was living in

joint family with either father or brother and the evidence on record

also has not created probability that the accused was living in joint

family. The evidence of spot panchanama shows that only accused

was living there with his family and it is brought on the record that

only because father was found in the vicinity of the house of the

accused, the spot panchanama was drawn in the presence of father

of the accused.

29) Evidence is given by Ghodke (PW 14), Investigating

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Officer that he sent the aforesaid two chits and also the sample hand

writing collected from the accused to hand writing expert. The record

like requisition letter, covering letter is produced. Dhotre (PW 12),

the hand writing expert is examined by the prosecution. Dhotre has

given evidence on procedure which is required to be followed for

comparison of the hand writing and the photographs taken by him

during procedure are produced. His evidence shows that he has

experience of examining more than three lakh documents and he

has experience as a witness of 3000 cases. His evidence shows that

all the documents were received by him on 4.4.2000. This date is

also relevant and important as it shows that steps were taken by

Investigating Officer immediately and the writing was sent to the

expert after getting specimen hand writing of the accused.

30) Dhotre (PW 12) has given evidence that he formed

opinion on the basis of examination made by him that there is no

significant difference in the specimen hand writing supplied to him

and the two chits (the chits, containing confession) and the author of

these documents is one and the same. He was extensively cross

examined by the defence counsel, but his evidence remained

unshattered. The documents are at Exhs. 52, 53, 54 and 55 as the

disputed documents and the specimen hand writing. This point will

be touched again at later place.

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31) Ghodke (PW 14), Investigating Officer has given

evidence that when accused was arrested on 29.3.2000 under

panchanama, his clothes were taken over. Babaji Dhok (PW 3) is

examined as panch witness to prove the arrest and seizure

panchanamas. This witness hails from Malkapur and it can be said

that he is the only panch witness who is not relative of deceased.

Babaji (PW 3) has given evidence that on 29.3.2000 the accused

was arrested in police station and the panchanama at Exh. 23 was

prepared when the clothes were taken over. He has given evidence

that there were injuries like scratches on the right palm of the

accused. There is mention of such scratches in panchanama, Exh.

23. Exh. 23 also shows that there were blood stains on both shirt

and pant of the accused. However, no record is produced by the

prosecution to show that accused was referred for medical

examination to get certificate in respect of the injuries found on his

right palm.

32) Ghodke (PW 14) has given evidence that the clothes of

the accused were sent to C.A. office with covering letter at Exh. 61.

The covering letter bears date of dispatch as 29.3.2000. The C.A.

report at Exh. 66 shows that human blood was detected on the

clothes of the accused. Blood of group 'B' was detected on the pant,

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trouser of the accused. Blood group of the deceased was 'B' as per

the other C.A. report. Though there is such evidence, the Trial Court

has held that this evidence is not sufficient to link the accused with

the incident in question.

33) Prosecution has examined Parashar (PW 9), the owner of

Gayatri Lodge from Badnapur. Parashar has given evidence that one

person had stayed in his lodge on the night between 27.3.2000 and

28.3.2000. He has given evidence that the said person had given his

name as Kakasaheb and the said person had put his signature in the

register of lodge. He has deposed that on 29.3.2000 police came to

his lodge with the said person and he identified the said person as

the same person who had stayed in his lodge by giving his name as

Kakasaheb. Parashar has given evidence that after about two

months, he was called by police to identify the same person in test

identification parade and he identified the accused in test

identification parade. A copy of entry made in respect of said

Kakasaheb in the lodge is taken on record as Exh. 42 and this

document is consistent with the evidence that one person by name

Kakasabe had stayed in his lodge.

34) Prosecution has examined Anjali (PW 6), Executive

Magistrate who conducted the test identification parade for giving

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the opportunity to Parashar to identify the accused. The record of

test identification parade is proved as Exhs. 28 to 31. The

substantive evidence of the Magistrate and the record show that

Parashar identified the accused on 9.5.2000 during test identification

parade. Six dummies were used. Though there is such evidence of

test identification parade, due to admission given by Parashar in his

evidence that on 29.3.2000 the accused was brought to him by

police and on that day, he had identified the accused, not much

importance can be given to the record of test identification parade.

35) Parashar (PW 9) identified accused in the Court as the

same person who had stayed in his lodge on the night between

27.3.2000 and 28.3.2000 by giving name as Kakasaheb. His

evidence came to be recorded by the Court on 13.7.2001 when the

incident had taken place in last week of March 2000, within one year

and four months. Due to peculiar circumstances of the present

matter, this Court holds that the evidence given by the lodge owner

of aforesaid nature, the stay of the accused in the lodge on the night

between 27.3.2000 and 28.3.2000 needs to be believed.

36) It can be said that police could have created

panchanama after recording the statement of accused under section

27 of the Evidence Act and then they could have gone to the lodge

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and then they could have taken over the record of the lodge. Though

this lacuna is there and police had opted other mode, this

circumstance is not sufficient to discard the prosecution evidence,

the evidence of Parashar (PW 9). The evidence of Parashar shows

that he did not know the accused prior to the stay of accused in his

lodge and he came to know the name of accused only on 29.3.2000.

There was no reason for police or Parashar to create false record. In

any case, this circumstance can be used only in support of the case

of prosecution that accused had absconded after commission of the

crime and he had left the village on 27.3.2000.

37) The incident took place on 27.3.2000 in day time. The

aforesaid evidence and circumstances show that everybody learnt

about the incident on 27.3.2000 itself and before evening Sarpanch

had passed the information to police and also to the relatives of

deceased on parent's side. Though the death had taken place in day

time of 27.3.2000, the accused, husband of the deceased was not

available in the village and he has not given any explanation. In

ordinary course, the husband was expected to take steps, atleast to

inform police about the incident that somebody had murdered his

wife if he was not involved in the offence. The accused did not take

such steps. He was absconding till 29.3.2000 and there is no

explanation from the accused about this inaction and circumstances.

Cri. Appeal No. 505/2001

This conduct of the accused is relevant under section 8 of the

Evidence Act as subsequent conduct. This circumstance is also not

considered by the Trial Court in proper perspective.

38) The evidence of Bhagwan (PW 1), real brother of

deceased; two cousin brothers of deceased like Bhausaheb (PW 2)

and Tejrao (PW 4) and also of Antikabai (PW 7), mother of deceased

is on motive. They have given evidence that there was illtreatment

to the deceased. Their evidence shows that this was the second

marriage of accused and he had married with deceased as his first

wife, accused No. 2 did not conceive from him even after many

years of the marriage. These witnesses have given evidence that

accused had suspicion about the character of deceased and suspicion

increased after the birth of issue. The evidence on record shows that

the first issue was born immediately after one year of the marriage.

The witnesses have given evidence that the deceased used to

disclose about the illtreatment which she was receiving from the

accused and reason for the illtreatment was aforesaid suspicion. The

witnesses have given evidence that on one occasion, they had tried

to convince the accused to behave well.

39) The aforesaid witnesses have given evidence that 15

days prior to the date of incident in question, father of the accused

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had reached the deceased to the house of first informant by saying

that there was possibility of killing of deceased by the present

respondent. The witnesses have given evidence that accused came

to the house of first informant after 8 days and he took the deceased

back to the matrimonial house. The evidence shows that after four

days, the deceased visited the house of her parents for one day, but

she returned to the matrimonial house after stay of one day. The

evidence of Antikabai (PW 7), mother shows that on the last

occasion, after stay of eight days in the house of parents, the

deceased was not ready to return to matrimonial house as the

accused was giving illtreatment to her. However, this lady has fairly

admitted that during short stay of one day on subsequent occasion,

the deceased had expressed that accused had started behaving

properly.

40) The aforesaid evidence shows that the deceased gave

birth to two issues and first issue was born immediately after one

year of the marriage. The accused could not get issue from the first

wife and so, he had suspicion about the character of deceased. Due

to peculiar circumstances of this case, this Court holds that this

suspicion acted as a motive for the crime and this suspicion was the

reason for giving illtreatment to the deceased by the accused. As

there is the evidence given on disclosure made by the deceased

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about the suspicion and also about the illtreatment and as there is

also evidence that the witnesses had tried to convince the accused,

this Court holds that the disclosures made by the deceased to these

witnesses need to be used as evidence under section 32 of the

Evidence Act. The last disclosure was made within 15 to 16 days

before the incident in question. There was such suspicion and the

medical evidence shows that the offender wanted to make it certain

that Gangabai is dead and he used both modes to finish her.

41) The C.A. report at Exh. 65 with covering letter show that

all the articles taken over from the spot of offence were having

human blood. The spade (described as 'hoe' in the spot

panchanama) was used as weapon and on the handle of this

implement blood was detected. The C.A. report in respect of blood of

deceased is at Exh. 64. Thus, article, agricultural implement which

was available in the shed of the accused was used as a weapon.

42) Much was argued for accused on the circumstance that

relatives of the deceased on parents' side were used as panch

witnesses and the Trial Court has also considered that circumstance.

It is true that almost all panch witnesses on spot panchanama and

panchanama of search of house of accused, close relatives of the

deceased on parent's side were used as panch witnesses. It can be

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called as lapse on the part of police. However, there are

circumstances in the present matter to show that the persons from

the village of the accused have not given evidence whole heartedly

against the accused. The immediate neighbour, who was expected to

give evidence on last seen turned hostile. Even Sarpanch admitted

few suggestions given to him in the cross examination to show that

he has no knowledge as to who is the owner of the house where the

dead body was found. It can be said that the persons from village of

the accused were not co-operating the police.

43) This Court has already observed that the evidence given

by relatives of deceased on parents side on the ownership of the

accused in respect of the house where dead body was found needs

to be considered separately and there is no reason to disbelieve

them. Further, for accused some suggestions already mentioned

were given in that regard, but no record of acquisition was

produced. What remains then is the collection of other material like

the material collected from the spot of offence including a chit

containing confession and the material collected from the residential

place from the village which also include a chit, containing

confession.

44) Due to circumstance that panch witnesses are close

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relatives of deceased, the evidence requires close scrutiny. It is

already observed that accused came to be arrested on 29.3.2000.

Both the chits were recovered by police on 28.3.2000. The first chit

was recovered in the early hours of 28.3.2000 and the copy of F.I.R.

was sent to the Court of Judicial Magistrate, First Class ('J.M.F.C.' for

short) on 28.3.2000. In the F.I.R. itself, the first informant had

mentioned about the finding of such chit and so, before the arrest of

the accused, it was informed to Magistrate in the F.I.R. that one chit

was recovered and circumstance, was made a record of the Court.

The first remand report dated 30.3.2000 shows that police had

informed to the learned J.M.F.C. that one more chit was recovered

from the residential place of accused and for that police wanted

police custody as they wanted to obtain specimen hand writing of

accused. On the basis of this remand report, police custody remand

was obtained by police. The record does not show that there was

any grievance from the accused in respect of the first or second chit.

The specimen hand writing of the accused was obtained on

31.3.2000. One panch used on Exh. 35 dated 31.3.2000 was Babaji

Dhok (PW 3) and other panch witness was Tejrao (PW 4). The record

shows that the learned prosecutor who conducted the matter for

State somehow missed to prove Exh. 35 in the evidence of Babaji

(PW 3), who was examined in the Court as witness on 25.6.2001.

Even in the evidence of Tejrao (PW 4), who was examined in the

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Court on 25.6.2001, the learned prosecutor missed to bring on

record evidence in respect of Exh. 35. It appears that the learned

prosecutor recalled Tejrao (PW 4) for giving evidence on Exh. 35 and

Tejrao was examined on 5.7.2001. Thus, it was possible for

prosecution to take evidence of independent witness on taking

specimen hand writing of the accused by examining Babaji Dhok

(PW 3), but the learned prosecutor called Tejrao (PW 4). Babaji Dhok

had not turned hostile. There are more such circumstances on the

record showing that witnesses were recalled by the learned

prosecutor. These circumstances show that the learned prosecutor

was either incompetent or he was not that sincere. He had not

collected the relevant data after going through the entire record for

each witnesses and so, these lapses were committed by the

prosecutor. Due to all these circumstances, this Court holds that

there is no reason to disbelieve the panch witnesses, even though

they were close relatives of the deceased on parents' side. The

evidence also shows that there was no room for concoction or

creation of false record of two chits containing extra-judicial

confession of the accused. This Court holds that the record of the

extra-judicial confession needs to be used against the present

accused in the present matter.

45) The aforesaid discussion shows that there are following

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incriminating circumstances which are fully established by the

prosecution.

(i) The incident of murder took place in the house,

in the shed of accused situated in his field in day time of

27.3.2000.

(ii) The weapon used for murder was agricultural

implement available in the house and ligature material

easily available.

(iii) The assault made on the deceased was not all

of a sudden, but it was pre-planned as two modes were

used to finish Gangabai.

(iv) The door of the house of accused was locked

from the outside by using lock, but the key was kept with

the lock showing that it was the job of person using that

house and not the job of outsider. In ordinary course, the

outsider would not have locked the door and would not

have kept the key with the lock. This circumstance needs

to be considered along with the two suicide notes showing

that the accused wanted to disclose the incident to others

as he wanted to commit suicide.

(v) The clothes of the accused were having blood

stains on 29.3.2000. The accused has not given any

explanation on this circumstance.

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(vi) The accused left the village on 27.3.2000, he

absconded and he was not available to police till

29.3.2000. The accused has not offered explanation as to

why he left the village, as to why he did not approach

police to inform the police about the murder of his wife.

(vii) In the two chits written by the accused, there is

extra-judicial confession of accused and there is

corroboration to this confessional statements.

(viii) The deceased had disclosed to the first

informant and other relatives about the suspicion which

accused had about her character and also about the

illtreatment, the accused was giving to her out of the

suspicion. The last disclosure was made about 15 days

prior to the date of incident in question and this was the

motive for the crime.

46) The Trial Court has not considered the aforesaid

circumstances against the accused as a whole. The Trial Court has

held that the few circumstances are fully established by the

prosecution. But it is also held that they are not sufficient to draw

inference of guilt. The reasoning given by the Trial Court shows that

the evidence on illtreatment was mainly considered to ascertain as

to whether it was sufficient for proof of 'illtreatment' as defined

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under section 498-A of IPC when these circumstances ought to have

been considered for offence of murder also. When death, murder

took place in the custody of accused, there cannot be evidence of

other nature. When the case rests on circumstantial evidence, the

Court is expected to consider each and every piece of circumstantial

evidence available under section 3 of the Evidence Act, separately

and then consider all the circumstances together. The finding of the

Trial Court that the absence of record about the ownership and

possession in respect of house where the incident took place is fetal

to the prosecution case, is erroneous. The evidence already

mentioned by this Court is not at all considered by the Trial Court.

Thus, the Trial Court has not considered the relevant facts in the

present matter and also the circumstance that the accused has not

offered explanation when it was necessary for him to offer

explanation in view of the provisions of section 106 and 114 of the

Evidence Act. All these circumstances point finger only to the

accused as the culprit.

47) The Trial Court has placed reliance on the observations

made by this Court in the case reported as 1999 CRI.L.J. 3841

(BOMBAY) [Dada Shankar Pawar Vs. State of Maharashtra].

The facts of this reported case were totally different. The facts and

circumstances of each and every criminal case are always different.

Cri. Appeal No. 505/2001

A single circumstance here and there can make a lot of difference in

criminal case. It is already observed that aforesaid established

circumstances are ignored by the Trial Court and their relevancy is

not properly considered by the Trial Court. When the facts of the

reported case were not identical, the Trial Court placed reliance on

the case to give decision of acquittal.

48) In view of the discussion of the evidence made above

this Court has no hesitation to hold that the prosecution has proved

both the offences against the respondent, accused. Thus, the

decision of the Trial Court needs to be interfered with. The accused

needs to be convicted and sentenced for the offence of murder,

which is the main offence. In view of the facts of the case already

discussed, this Court holds that it is not a rarest of rare case. The

incident took place due to suspicion which the accused had about the

character of deceased. Thus, the death penalty is not warranted in

the present matter. In view of these circumstances, there is no need

to give hearing to the respondent, accused on the point of penalty.

In the result, following order.

ORDER

(I) The appeal is allowed. The judgment and order

of Trial Court delivered in Sessions Case No. 42/2001,

acquitting the respondent/accused - Shivaji Bhujangrao

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Ukirde of the offences punishable under sections 302, 498-

A of IPC is hereby set aside.

(II) Respondent/accused - Shivaji Bhujangrao

Ukirde stands convicted for the offence of murder

punishable under section 302 of IPC and he is sentenced to

suffer imprisonment for life and to pay fine of Rs.5,000/-

(Rupees five thousand). In default of payment of fine, he is

to further undergo rigorous imprisonment for three

months.

(III) Respondent/accused - Shivaji Bhujangrao

Ukirde stands convicted for the offence punishable under

section 498-A of IPC and he is sentenced to suffer rigorous

imprisonment for one year and to pay fine of Rs.500/-

(Rupees five hundred). In default of payment of fine, he is

to further undergo rigorous imprisonment for one month.

           (IV)                Both    the    substantive      sentences          to     run

           concurrently.



           (V)                 The accused is entitled to set off in substantive

sentence in respect of the period for which he was behind

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bars as under trial prisoner in the the present matter.

(VI) The accused is to surrender to his bail bonds for

undergoing the sentence. The Trial Court is to issue

conviction warrant according.

       [ARUN M. DHAVALE, J.]                     [T.V. NALAWADE, J.]




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