Bombay High Court
Nitin Balkisan Gaikwad And Others vs The State Of Maharashtra on 20 March, 2017
Bench: S.S. Shinde
cnfcase4.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL CONFIRMATION CASE No.4 OF 2016
The State of Maharashtra.
... APPELLANT
VERSUS
Nitin Balkisan Gaikwad,
Age: 32 years, Occu. Service,
R/o. Quarter No.E-5, Krushi Mahavidyalaya
Employees Quarters, Parola Road, Dhule
... RESPONDENT
(Ori. Accused No.1)
...
Mr. A.B.Girase, Public Prosecutor with
Mr.M.M.Nerlikar, A.P.P. for Appellant - State.
Mr.Joydeep Chatterji Advocate for Respondent-
Accused.
...
WITH
CRIMINAL APPEAL No. 701 OF 2016
1) Nitin Balkisan Gaikwad,
Age: 32 Years, Occu. Service,
R/o. Quarter No.E-5, Krushi Mahavidyalaya
Employees Quarters, Parola Road, Dhule.
2) Vimalbai Balkisan Gaikwad,
Age: 67 years, Occu.: Housewife.
3) Dnyaneshwar Balkisan Gaikwad,
Age: 40 Years, Occu. : Labour,
::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:49 :::
cnfcase4.16
2
4) Pappu Balkisan Gaikwad,
Age: 37 years, Occu. : Driver,
Appellant Nos.2 to 4 R/o. Koliwada,
Ganapati Ghat, Tq. Rahuri,
Dist. Ahmednagar.
... APPELLANTS
(Ori.Accused Nos.
1 to 4)
VERSUS
The State of Maharashtra
... RESPONDENT
...
Mr.Joydeep Chatterji, Advocate for Appellants -
accused.
Mr.A.B.Girase, Public Prosecutor with
Mr.M.M.Nerlikar, A.P.P. for Respondent - State.
...
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE OF RESERVING JUDGMENT : 3RD MARCH, 2017.
DATE OF PRONOUNCING JUDGMENT: 20TH MARCH, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. In Sessions Case No.182 of 2014 the
learned Additional Sessions Judge, Dhule has
awarded death sentence to accused No.1 therein,
the proceedings in the said case, have been
cnfcase4.16
therefore forwarded to this Court for confirmation
under Section 366 of the Criminal Procedure Code.
2. Accused No.1 along with other accused
i.e. accused Nos.2, 3 and 4 have also preferred
Criminal Appeal No.701 of 2016, challenging the
Judgment and order dated 10th November 2016,
passed by the Additional Sessions Judge, Dhule in
Sessions Case No.182 of 2014. The Additional
Sessions Judge, Dhule vide Judgment and order
dated 10th November 2016, convicted accused No.1
Nitin Balkisan Gaikwad for the offence punishable
under Sections 302, 498-A and 506 of the Indian
Penal Code. Accused No.1 is convicted for the
offence punishable under Section 302 of the Indian
Penal Code, and he is sentenced to Death. Accused
No.1 Nitin is convicted under Section 498-A of the
Indian Penal Code and is sentenced to undergo
rigorous imprisonment for three years and to pay
fine of Rs.10,000/-, in default to suffer rigorous
imprisonment for three months. Accused No.1 Nitin
cnfcase4.16
is also convicted for the offence punishable under
Section 506 of the Indian Penal Code and is
sentenced to undergo rigorous imprisonment for two
years and to pay fine of Rs.3000/-, in default to
suffer rigorous imprisonment for one month.
. Accused No.2 Vimalbai Balkisan Gaikwad,
accused No.3 Dnyaneshwar Balkissan Gaikwad and
accused No.4 Pappu Balkisan Gaikwad are convicted
for the offence punishable under Section 498-A
read with 34 of the Indian Penal Code, and are
sentenced to undergo rigorous imprisonment for one
month each and to pay fine of Rs.3000/- each, in
default to undergo rigorous imprisonment for
fifteen days.
3. As both the matters are arising out of
one judgment, the arguments in both the matters
are simultaneously heard and we find it expedient
to decide both the matters by common reasoning.
However, since the very conviction has been
cnfcase4.16
challenged by the convict, the only proper course
would be to first decide the Criminal Appeal so
filed by the accused, for the reason that, only if
the order of conviction is maintained by this
Court, the further question will arise whether or
not the death sentence awarded by the trial Court
is sustainable and is to be confirmed or
otherwise.
4. Heard the learned Public Prosecutor for
the State and the learned counsel appearing for
the accused.
5. The factual matrix of the prosecution
case in brief as stated before the trial Court is
as under:
A) The prosecution case disclosed from
charge sheet and the relevant police papers, is a
heinous crime which shows the social menace of
dowry and strong emotions of vengeance can lead
cnfcase4.16
harassment of a woman to the extent of heinous and
brutal murder of her.
B) Accused No.1 Nitin is husband of Pranita
(deceased) and accused nos. 2, 3 and 4 are the
mother and brothers of accused No.1 Nitin. Before
about 2 months of the date of incident i.e. 25th
July, 2014, victim Pranita and accused No.1 Nitin
got married. Accused No.1 was working in
Agricultural College, Dhule, as a Driver and was
residing in the campus of the Agricultural College
in staff quarters. On the day of incident i.e.
the fateful night of 24th July, 2014 and 25th
July, 2014, only accused No.1 Nitin and his wife
Pranita were present in the Quarter No.E-5.
C) Regarding the incident, one Dr. Pravin
Rathod working in the Agricultural College, Dhule
as a Specialist gave report on 25th July, 2014 at
about 11.00 a.m., that while he was on duty at
10.00 a.m., on that day one staff member namely,
cnfcase4.16
Prachi Kale told him that the house of accused
No.1 Nitin is closed from inside and he or his
wife are not opening the door, therefore,
something is wrong there. On her say, the
complainant along with other staff went to Quarter
No.E-5, where they saw that people have gathered
over there and front door as well as the rear door
of the house was closed from inside. Hence he
peeped from the window situated above the door and
found that in pool of blood accused No.1 Nitin and
his wife Pranita were lying on the mattress and
profuse bleeding had taken place from injuries of
his wife. By that time, Police Officers and
Policemen from Azad Nagar Police Station, Dhule,
came on the spot and they broke opened the door of
the house and found that accused No.1 Nitin was
lying in unconscious condition. While there was no
movement of the body of his wife. Her neck /
throat was seen cut and due to the bleeding her
clothes were stained with blood. Near her, accused
No.1 Nitin was found lying with the cuts injuries
cnfcase4.16
on his throat - chest and wrists of both hands. A
blade, a knife and a sickle stained with blood
were lying near him. In the said room near the
T.V., one chit was kept which was signed in
English by accused No.1 Nitin. It was mentioned
in the contents of the chit that the father in law
of Nitin, namely, Bhausaheb Ghane had taken hand
loan of Rs.7,00,000/- from accused No.1 which he
had paid at the behest of his wife. Both accused
No.1 and his wife Pranita were brought to Civil
Hospital, Dhule, where Pranita was declared dead,
while accused No.1 Nitin was given immediate
medical treatment in the Civil Hospital.
According to the first informant, accused No.1
Nitin had married Pranita before two months and
while staying in his house with her, due to some
reasons, he has committed murder of his wife by
inflicting serious injuries on her neck with the
help of sharp weapons like sickle, knife and
blade. According to the informant, accused No.1
Nitin had also wrote down a chit mentioning the
cnfcase4.16
name of his father in law in it and with intention
to commit suicide had inflicted injuries on his
throat and both wrists with blade or knife and he
has also murdered his wife.
D) After registering the First Information
Report, the investigation was started. From the
spot of offence i.e. from the house of the accused
No.1, the blade and other articles lying there
were seized under Panchnama. The blade was sent
for chemical analysis report. Spot Panchnama and
Seizure Panchnama of the Articles lying over there
like sharp weapons sickle, knife, blade and bottle
of poison as well as blood stained clothes etc.
were seized. Postmortem of the deceased Pranita
was conducted. The seized Articles were sent for
chemical analysis report. The provisional
postmortem report was obtained. Thereafter the
postmortem report was obtained. Accused No.1
Nitin was clinically examined and injury
certificate was issued by Civil Hospital, Dhule.
cnfcase4.16
The Panchnama of the spot was executed, map of the
spot was prepared, after the postmortem the
clothes of deceased Pranita were seized by
executing Panchnama.
E) Similarly, clothes of accused No.1 Nitin
which he was wearing at the time of incident were
also seized. A chit which was found near T.V. was
seized under Panchnama. The specimen handwriting
of accused No.1 Nitin was obtained and along with
it the chit recovered from the spot of offence was
sent for getting opinion of the handwriting expert
by the Investigating Officer. The statement of the
witnesses were recorded. Immediately after
admitting accused No.1 Nitin in the Civil
Hospital, Dhle his statement was recorded by the
Executive Magistrate. From the spot of offence,
under Panchnama besides the sharp weapons like
sickle, knife, blade of Super Max company and
bottle of poison having name "Tactic", a cover of
mattress, a steel glass, two mobiles of Samsung
cnfcase4.16
company, a chit written on A-4 size paper on which
the contents were in Marathi while the signature
was in English, the ball pen of blue ink and of
Reynolds company, the sample of blood from the
pool of the blood found in that house from both
the sides of the mattress were seized. Blood was
also collected by scratching the plywood of the
cot kept in that room for specimen of the blood.
The blue half T-shirt with red sleeves which was
torn from the neck till navel of the accused No.1
with the blood stains on it as well as gray
coloured tracksuit pant with blood stains which
was on the person of Accused No.1 Nitin were
seized, while from the body of Pranita (deceased)
a saree of pink and white colour with green border
and with blood stains, pink coloured petticoat
with blood stains, black coloured blouse having
blood stains near the neck portion of the blouse
and under wear of black colour with flower design
of the deceased were seized. The seized Articles
were labelled and sealed and sent for chemical
cnfcase4.16
analysis report.
F) The viscera of deceased Pranita was also
sent for chemical analysis report. Inquest
Panchnama of the dead body of Pranita was
executed. The blood of accused No.1 Nitin as well
as deceased Pranita was obtained for getting
chemical analysis report. The seized bottle of
poison and steel glass were sent for chemical
analysis report.
G) After the completion of the
investigation, the Investigating Officer prepared
the charge-sheet and sent it to Court of Judicial
Magistrate, First Class-6, Dhule. The concerned
Magistrate, the offence under Section 302 of the
Indian Penal Code being exclusively triable by
Sessions Court, committed it to Sessions Court.
H) During the investigation, the statements
of the witnesses disclosed that Accused Nos.2, 3
cnfcase4.16
and 4 had harassed deceased Pranita in furtherance
of their common intention with Accused No.1, for
their demand of remaining amount of dowry of
Rs.50,000/-, hence, other accused were also added
with addition of relevant Sections of the Indian
Penal Code for harassing deceased Pranita.
I) Charge was framed and it was read over
and explained to the accused in vernacular. They
all pleaded not guilty and claimed to be tried.
The defence of accused No.1 Nitin emerged from the
cross-examination of the prosecution witnesses was
that Pranita assaulted him which resulted his
becoming unconscious and he does not know as to
what happened thereafter. The another defence
emerged while recording statement under
Section 313 of the Code of Criminal Procedure is
that during that night, accused No.1 and Pranita
slept by putting off the light and in the dark,
somebody gave blow to him by weapons and he became
unconscious and hence, he does not know as to what
cnfcase4.16
happened thereafter. Accused Nos.2, 3 and 4 have
contended that they are falsely implicated in the
case for the purpose of giving trouble to them.
. After recording the evidence and
conducting full fledged Trial, the Trial Court
convicted and sentenced the accused in a manner
stated in Para 2 herein above.
6. The learned Public Prosecutor appearing
for the State invites our attention to the
evidence of the prosecution witnesses and submits
that the findings recorded by the trial Court are
in consonance with the evidence brought on record
by the prosecution. He submits that the
prosecution has brought on record clinching
evidence which would clearly demonstrate that on
the fateful night accused No.1 Nitin and his wife
Pranita were only present in the house. The spot
of incident is house of accused No.1. Both the
doors of the house were closed from inside. When
cnfcase4.16
it was noticed by the other employees residing in
the vicinity of the house wherein accused No.1 was
residing, that the accused did not attend his
duties in the office, the employee PW-6 Kumar, who
is residing adjoining the house of the accused,
though gave call at 8.30 a.m., there was no
response from accused No.1. It is submitted that
accused No.1 was obliged to explain under which
circumstances Pranita died. It is submitted that
the spot panchnama was conducted, weapons are
seized from the spot of incident. Those weapons
were found blood stained and the C.A. report
clearly demonstrate the human blood on said
weapons. It is submitted that defence taken by
accused No.1 that some other person entered in the
house and assaulted him and his wife Pranita is
not probable since both the doors of the house
were closed from inside. He invites our attention
to the medical evidence and submits that
prosecution has convincingly proved that death
was homicidal. He invites our attention to Para 72
cnfcase4.16
of the Judgment and submits that the trial Court
upon appreciation of the entire evidence on record
found that accused No.1 committed murder of
Pranita in extremely brutal manner, gruesome,
diabolical, cold-blooded, cruel and painful manner
and therefore thought it fit to award death
sentence to accused Nitin. In support of his
contention that the death sentence awarded by the
trial Court deserves to be upheld, he pressed into
service exposition of law in the following
reported/ unreported cases:
(1) Bachan Singh vs. State of Punjab 1 (2) Rajendra
Pralhadrao Wasnik vs. State of Maharashtra2 (3)
Purushottam Dashrath Borate and another vs. State of
Maharashtra (decided by the Supreme Court on 8th May
2015 in Criminal Appeal No.1439 of 2013), (4) The
State of Maharashtra vs. Viran Gyanlal Rajput (decided
by the High Court of Bombay at Principal Seat on 16th
February 2015 in Confirmation Case No.3 of 2014 with
Criminal Appeal No.760 of 2014), (5) Vasanta Sampat
Dupare vs. State of Maharashtra3 (6) State of
1 (1980) 2 S.C.C. 684
2 (2012) 4 S.C.C. 37
3 (2015) 1 S.C.C. 253
cnfcase4.16
Maharashtra and another vs. Rakesh Manohar Kamble @
Niraj Ramesh Wakekar and another4 (7) The State of
Maharashtra vs. Shatrughna Baban Meshram (decided by
the High Court of Bombay Bench at Nagpur on 12th
October 2015 in Criminal Confirmation Case No.01 of
2015 with Criminal Appeal No.321 of 2015) (8) Mangal
Singh vs. State of Uttar Pradesh 5 (9) Perumal Perumal
alias Thankachan vs. State of Kerala6 (10) Suresh Surya
Sitaram vs. State of Maharashtra7 (11) Dhananjoy
Chatterjee alias Dhana vs. State of West Bengal8 (12)
Laxman Naik vs. State of Orissa 9 (13) Shivaji @ Dadya
Shankar Alhat vs. State of Maharashtra10
7. On the other hand, Mr. Chatterji, learned
counsel appearing for the accused, has tendered
across the Bar written arguments and submits that
accused No.1 Nitin had no motive or reason to
murder his wife because his neighbour, PW-6 Kumar
Bhoye has clearly admitted in Para 6 of his cross-
examination that relations between Nitin and his
wife were good. He further submits that
4 (2014) 2 Bom.C.R. (Cri.) 664
5 (1975) 3 S.C.C. 290
6 (1975) 4 S.C.C. 109
7 (1975) 3 S.C.C. 820
8 (1994) 2 S.C.C. 220
9 (1994) 3 S.C.C. 381
10 (2008) 15 S.C.C. 269
cnfcase4.16
allegations about cruelty as deposed by PW-2
Bhausaheb Ghane, father of deceased Pranita are
vague, sweeping and omnibus against all the
accused. In cross-examination, PW-2 Bhausaheb
admits that his deceased daughter was always
insisting him to return the money of the accused
and that financial condition of accused No.1 was
better than PW-2 Bhausaheb. The learned counsel
further submitted that the allegations of cruelty
constitute a vital link in the chain of
circumstances and the link is not established in
the present case and therefore the conviction
under Section 302 of the Indian Penal Code is
unsustainable.
8. Learned counsel appearing for the accused
further submitted that accused No.1 Nitin
sustained multiple injuries on his body caused by
sharp pointed weapon and PW-4 Dr. Madhuri has
admitted in cross-examination that those are
possible due to assault by another person.
cnfcase4.16
Moreover, the arrest Panchnama proved by PW-5
Subhash Karne, depicts several injuries from chest
to navel of accused No.1 which are stitched. So
the defence raised under Section 313 of the Code
of Criminal Procedure of assault by somebody in
the dark, appears probable. Learned counsel
appearing for the accused further submits that
PW-1 Dr. Pravin Rathod has stated that there was
one window on the upper side of the door of house.
Possibility of an intruder entering through that,
assaulting accused No.1 and deceased Pranita and
exiting, cannot be ruled out. All the articles
sent to the Chemical Analyser were found stained
with Blood Group "A" which is of accused No.1. The
blood group of the deceased Pranita could not be
determined. It is submitted that PW-6 Kumar Bhoye
has admitted in his cross-examination that police
had seized one chit from the spot which was read
over to him and therein it was stated that Pranita
is committing suicide. The said chit thus
fortify the theory of suicide. But the
cnfcase4.16
prosecution has suppressed the same and and
therefore an adverse inference needs to be drawn.
Learned counsel appearing for the accused submits
that though PW-1 Dr. Pravin Rathod and PW-6 Kumar
Bhoye have stated that there were two doors to the
quarter, PW-6 Kumar stated in his examination in
chief that only the front door was closed and
therefore the possibility of the back door being
opened, has not been ruled out by the prosecution.
9. Learned counsel appearing for the accused
also invites our attention to the grounds taken in
the Appeal Memo and also the evidence of the
witnesses and submits that the prosecution has not
convincingly proved that the door from the back
side of the house was closed. The defence taken by
accused No.1 is probable. The benefit of doubt
deserves to be extended in favour of accused No.1.
He submits that entire case rests upon the
circumstantial evidence. The prosecution has not
proved the chain of circumstances. Relying upon
cnfcase4.16
the Judgment of the Supreme Court in the case of
Hanuman Govind, Nargundkaar and another vs. State
of M.P.11 the learned counsel submits that in cases
where the evidence is of a circumstantial nature,
the circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused and the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude
every hypothesis but the one proposed to be
proved. In other words, there must be a chain of
evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such
as to show that within all human probability the
act must have been done by the accused.
10. Learned counsel appearing for the accused
11 A.I.R. 1952 S.C. 343
cnfcase4.16
further pressed into service exposition of law by
the Supreme Court in the case of Shankarala
Gyarasilal Dixit vs. State of Maharashtra12 and
submits that in a case pf circumstantial evidence,
the circumstances on which the prosecution relies
must be consistent with the sole hypothesis of the
guilt of the accused.
11. Without prejudice to the arguments/
contentions raised herein before, in the
alternative, learned counsel appearing for the
accused submits that, in case this Court is not
inclined to interfere into the findings recorded
by the trial Court, at least this Court may modify
the sentence since there are number of mitigating
circumstances in favour of accused No.1. He
submits that the neighbour of accused No.1 and
also father of Pranita in their evidence have
stated that relationship between accused No.1
Nitin and his wife Pranita was cordial. He submits
12 A.I.R. 1981 S.C. 765
cnfcase4.16
that at the time of alleged commission of offence,
the age of accused No.1 was of 31 years and he
has no any criminal record earlier and therefore
death sentence may be reduced to life. In support
of his submissions, the learned counsel invites
our attention to the Judgment of the Supreme Court
in the case of Machhi Singh and others vs. State
of Punjab13, wherein the Supreme Court has laid
down guidelines to be followed by the Courts while
considering the aggravating and mitigating
circumstances so as to give the appropriate
sentence.
12. We have heard the learned Public
Prosecutor appearing for the State and
learned counsel appearing for the accused
at length, with their able assistance perused
the entire notes of evidence so as to
re-appreciate the evidence in its entirety. We
have also perused the Judgments cited across
13 A.I.R. 1983 S.C. 957
cnfcase4.16
the Bar by the Public Prosecutor appearing for the
State and learned counsel appearing for accused /
appellant. The prosecution in order to prove its
case, examined Dr. Pravin Kisanrao Rathod as PW-1.
In his deposition, he stated that from 30th
November, 2011 to 2nd June, 2015 he was
attached to Krishi Mahavidyalaya [Krishi Vidnyan
Kendra, Dhule] coming under Rahuri Krishi
Vidyapeeth as Subject Matter Specialist. He
identified the accused in the court hall. He
stated that accused was working as Driver with
College. He also stated name of the accused. He
further stated that accused No. 1 was residing in
Staff Quarters of the Agricultural College along
with his wife. The marriage of accused No. 1 was
performed prior to two months of the incident.
He further stated that the incident occurred on
25th July, 2014. At that time PW-1 was supervising
sowing of maize. At that time PW-1 received the
call that doors of the house of accused No.1 could
not be opened and all other staff went there. Said
cnfcase4.16
phone call was made by Prachi Kale Madam.
Thereafter, PW-1 Dr.Pravin also went there. There
were two doors to the quarter of accused No.1. At
that time both the doors were closed from inside.
He further deposed that there was one window on
the upper side of the door. Somebody had seen from
the said window and it was noticed that accused
No.1 and his wife were lying in the pool of blood.
Accordingly, they called Azad Nagar Police
Station. Police staff came on the spot. They
pushed the door and opened it. They broke the
said door. After police entered the house, PW-1
also went inside. PW-1 noticed that accused No.1
and his wife were lying in the pool of blood.
Blade, sickle and knife stained with blood were
lying near them and there was one nod kept near
T.V. Accused No.1 and his wife were sent to the
Civil Hospital by ambulance. In the Civil
Hospital, Doctor examined wife of accused No.1 and
declared her as dead. There were wounds on the
throat of wife of accused No.1. There were
cnfcase4.16
injuries on the wrist and forearmed of accused
No.1. Medical treatment was given to accused No.1
in Civil Hospital. PW-1 realized that, accused
No.1 has assaulted his wife. PW-1 was called by
Police Inspector in Azadnagar Police Station, he
went there and filed FIR. When the report was
shown to him, PW-1 identified the same to be
correct.
. During his cross examination, PW-1
deposed that as both the doors of the
house of accused No.1 were closed from
inside he felt that accused No.1 has committed
murder of his wife. He reiterated that Police
broke open the door and went inside the house. He
further deposed that he also went inside the house
at about 12.00 to 1.00 p.m. and he lodged the FIR
after 2.00 p.m.
13. Upon careful perusal of evidence of PW-1,
it clearly emerges that the spot of incident was
cnfcase4.16
official residence i.e. Quarter No.E-5 of accused
No.1. Both the doors of the house were closed from
inside. There was one window on the upper side of
the door. However, this witness has stated that
the door of the house was broke open by the
police. It has also come on record in the spot
panchnama that the articles which are used to
lock the door were lying inside the house.
Therefore, the argument of the counsel appearing
for accused No.1 that there was one window on the
upper side of the door and possibility of entry of
other person / persons inside the house, is
completely ruled out. The police personnel were
required to break open the door is indicative of
the fact that both the doors of the house were
closed from inside, as stated by PW-1 Dr. Pravin.
The evidence of PW-1 Dr. Pravin in material
particulars gets corroboration from the evidence
of PW-6 Kumar Kondaji Bhoye. In his evidence,
PW-6 Kumar stated that he is serving as peon in
Krishi Vidnyan Kendra, Dhule since 2011. He was
cnfcase4.16
residing in the Quarters situated in the campus of
Agricultural College, Dhule. He deposed that he
knows accused No.1. Accused No.1 is serving in
their Department as a Driver. Accused No.1 was
residing in the quarters of their Department. PW-6
was residing in quarter No.2 and the accused No.1
was residing in quarter No.5. Prior to one month
of the incident, accused No.1 started residing in
the said quarter. Initially, accused No.1 was
residing with his wife and his mother. Incident
occurred on 25th July, 2014, mother of accused
No.1 resided there for about 8 days and
thereafter, she went away.
14. PW-6 further deposed that on 25th July,
2014, he started for office at about 8.30 a.m.
PW-6 called accused No.1 at the time of leaving
the quarter but as there was no response, PW-6
went to the office. PW-6 received a phone call
from mother of accused No.1 after 10.00 a.m. to
10.15 a.m. As accused No.1 was residing near
cnfcase4.16
PW-6, mother of accused No.1 was having mobile
number of PW-6. Mother of accused No.1 had called
PW-6 for inquiring about accused No.1. Accused
No.1 was also having mobile phone. Mother of
accused No.1 told PW-6 that accused No.1 is not
attending the phone and therefore she requested to
tell regarding whereabouts of accused No.1. As
accused No.1 was absent on his duties, officers
told PW-6 to go to the house of accused No.1 and
take search. So PW-6 again returned to the
quarter i.e. residence of accused No.1 and called
accused No.1, but nobody responded from inside the
house. Door of the house of accused No.1 was
closed from inside. PW-6 made phone call in his
office and told that there was no response from
the house of accused No.1. So all the Officers
from their office visited the quarters. There were
two doors to the quarters. The front door of the
quarter was closed from inside. There was one
window to that quarter. The said window was also
closed. The Principal of the College called police
cnfcase4.16
and police visited the spot. Police were called as
there was no response from inside the house.
Police broke the front door and opened the same.
After opening the door it was found that, accused
No.1 and his wife were lying streamed in blood. As
accused No.1 was alive, he was sent to the
Hospital. But his wife expired on the spot. On the
spot, sickle, knife, one bottle, ball-pen and
paper were found. There were blood stains on the
sickle and the knife. There were two mobile
handsets on the spot. PW-6 identified those
articles. Police collected samples of blood lying
on the spot. Police seized all those articles.
Police has sealed all those articles and obtained
signature of PW-6. Police prepared a panchnama.
. PW-6 further deposed that on 26th July,
2014, he was called in the police Station for
seizure panchnama of the clothes recovered from
the spot. He signed the said panchnama as Panch.
There were blood stains on the clothes. The blue
cnfcase4.16
coloured T-shirt and ash coloured tracksuit i.e.
Article Nos.14 and 15 were shown to him. He stated
that the seizure of those clothes was in his
presence.
. In his cross examination, PW-6 stated
that there is a distance of about 20 feet in
between his house and house of accused No.1. He
was not on visiting terms to the house of accused
No.1. But he used to go to office together with
accused No.1. PW-6 has admitted in his evidence in
cross-examination that relations in between
accused No.1 and his wife were good. He
specifically stated that he was present in his
house at night prior to the day of incident,
however he did not hear any noise or shouts from
the house of accused No.1.
. The seizure Panchanama was duly proved by
PW-6 Kumar Bhoye. The seizure of blood stained
clothes of accused No.1 and deceased Pranita were
cnfcase4.16
also duly proved by him. The seizure of weapons -
knife, sickle and blade were also proved by him.
On perusal of these seized weapons and their
sizes, it indicates that the severe blows
sustained by the deceased Pranita can be given by
these weapons and these weapons are sufficiently
lethal/ deadly to cause death if injuries are
inflicted with the help of it.
15. Learned counsel appearing for accused
No.1 tried to suggest that PW-6 has not stated,
whether rear door of the house was closed from
inside or otherwise. As already observed, PW-1
Dr.Pravin has categorically stated that, both the
doors of the house were closed from inside.
Merely because PW-6 Kumar in his evidence has not
made specific statement that both the doors of the
house were closed from inside, would not nullify
his specific contention that, since the front door
of the house of accused No.1 was closed from
inside, the police were required to break open the
cnfcase4.16
door, and then entered into the house of accused
No.1.
16. There is also evidence of PW-7 Swapnil
Subhash Mahajan. He stated that he was serving as
Driver in the Agricultural College. Incident
occurred on 25th July, 2014. He further deposed
that, he met accused No.1 prior to 7-8 days of the
incident and at that time accused No.1 asked PW-7,
what punishment is to be awarded to a Government
servant if he commits any offence. PW-7 asked
accused No.1 as to what he was thinking. However,
accused No.1 smiled and went away. PW-7 further
deposed that on 25th July, 2014, he went to the
office as usual. Even though much time was
lapsed, accused No.1 did not attend the office.
So, Shri Kumar Bhoye (PW-6) suspected something
and called the other staff members on the spot.
After reaching there, they also called accused
No.1 but he did not reply. Many persons gathered
there, and called to Principal of College. When
cnfcase4.16
somebody peeped from the window, it was noticed
that accused No.1 and his wife were lying in the
pool of blood. Then police were called.
Immediately police came near the house of accused
No.1. It was noticed that, the door of the house
of accused No.1 was closed from inside. Police
broke open the doors and went inside. PW-7 was
standing outside along with other staff members.
After opening the door, PW-7 noticed that accused
No.1 and his wife were lying in the pool of blood.
There was sickle, knife and blade. Two mobile
handsets were also there. When all those articles
were shown to PW-7, he identified the same. PW-7
further deposed that after going inside the house,
police told him that lady has expired but accused
No.1 is still breathing, and therefore accused
No.1 was shifted to Civil Hospital.
. During the course of cross examination of
PW-7, nothing useful to the defence has been
elicited and brought on record.
cnfcase4.16
17. If the evidence of PW-1 Dr. Pravin, PW-6
Kumar and PW-7 Swapnil is considered in its
entirety, it leads to the definite conclusion that
the spot of incident was residential quarter i.e.
Quarter No.E-5, of accused No.1. Secondly, dead
body of Pranita, and accused No.1 found lying in
unconscious condition, was noticed by these three
witnesses and also the other persons gathered
there including police personnel. The fact that
both the doors of the house were closed from
inside has been stated by PW-1 Dr. Pravin, and
further the police were required to break open the
door is also stated by all witnesses. Therefore,
their evidence unequivocally indicates that, both
the doors of the house of accused No.1 were closed
from inside. Wife of accused No.1 was lying in
pool of blood with multiple injuries on her body
and accused No.1 was also lying in unconscious
condition in the said house. The witnesses have
noticed the sickle, knife and also the blade
cnfcase4.16
stained with the blood lying on the spot. The
prosecution has convincingly proved through
witnesses that, on the relevant night of the
incident and second day morning till door was
broke open, only accused No.1 and his wife Pranita
were present in the said house and none else. It
is only accused No.1 who knew what happened during
the said night since those facts were within his
special knowledge. The evidence of the prosecution
witnesses indicates that, it was impossible for
anybody to enter or come out from the window,
which was on the upper side of the front door of
the house. All the weapons found on the spot were
blood stained. Though the suicide note was found
near T.V., but there were no blood stains on it.
The witnesses noticed multiple injuries around the
neck of deceased Pranita. However, the injuries on
the person of accused No.1, were only on wrist and
one or two abrasions on neck and chest. It has
also come on record that accused No.1 was able to
speak when he was brought to the Hospital. We will
cnfcase4.16
be discussing little later the evidence of the
Medical Officer, who has examined Appellant No.1
and deceased Pranita.
18. If the evidence of PW-1 Dr. Pravin, PW-6
Kumar and PW-7 Swapnil is considered in its
entirety, it unambiguously shows that, during the
night of the incident, both the doors of the house
were closed from inside and only accused No.1 and
his wife were present inside the house. The
prosecution has discharged its burden through said
witnesses that, none else than accused No.1 and
Pranita (deceased) were present in the house.
Therefore, what happened during the said fateful
night, was within the special knowledge of accused
No.1 and therefore he was obliged to discharge his
onus by offering explanation under what
circumstances Pranita died.
19. The prosecution has examined Dr.Ajit
Pathak as PW-3, who conducted postmortem on the
cnfcase4.16
dead body of Pranita. In his examination in chief,
he deposed that he was attached to Government
Medical College from 1st February, 2000. He has
conducted approximately 5000 postmortems. On 26th
July, 2014, dead body of Pranita Nitin Gaikwad was
brought by police of Azadnagar Police Station for
postmortem examination. On the same day, in
between 10.40 a.m. to 11.40 a.m., postmortem was
conducted by PW-3 along with Dr. A.R.Patil. PW-3
further deposed that as per police report, the
history was "assault by sharp weapon over neck".
The deceased was wearing pink printed saree, black
blouse, red petticoat and gray nicker. Clothes of
deceased were stained with blood. PW-3 found
following injuries on the dead body of Pranita
which were mentioned in column No. 17 of the
postmortem report:
1. Incised wound over neck, right side, 2
cm below right mastoid process, 5 x 1.5 cm x
muscle deep.
cnfcase4.16
x 1 cm x muscle deep, tailing medially.
3. Incised wound over right submandibular
region, 3 x 0.8 cm x muscle deep.
4. Incised wound over anterior part of
neck, in midline, horizontal, 3.5 x 1.5 cm x
cavity deep, underlying vessels cut.
5. Incised wound parallel to and 1 a.m.
below injury No.4, 3.5 x 1.5 x cavity deep
underlying vessels and structures cut through
and through.
6. Incised wound, right lateral and 5 cm
below to injury No.2, 4 x 1.5 cm x cavity
deep, underlying vessels cut.
7. Incised wound over neck, right side, 3
cm above right clavicle, 3 x 1.5 cm x cavity
deep, underlying vessels cut.
8. Incised wound over neck, right side, 1
cm above right clavicle, 3x 1.5 cm x cavity
deep.
9. Multiple incised wounds over neck,
cnfcase4.16
laterally on right side, in the area of 12 x
7 cm. Ranging from size 7 x 0.4 cm to 9 x 0.4
x muscle deep.
10. Incised wound 2 cm below and right
lateral to injury No.2, 3 x 1 cm,
bleeding ++.
11. Incised wound over dorsum of terminal
phalynx of middle finger of right hand, 1 x
0.5 cm x bone deep, indicative of defense
injury.
12. Incised wound over dorsum of terminal
phalynx of ring finger of right hand, 0.7 x
0.5 cm x bone deep, indicative of defense
injury."
. PW-3 Dr. Ajit further deposed that there
is haematoma in neck muscles in anterior and right
lateral part of neck. All those injuries mentioned
in column No.17 are possible by sharp weapon.
Injures were ante mortem in nature and fresh
within 0 to 6 hours of death. PW-3 further deposed
that they noticed Trachea cut through and through.
He further deposed that he preserved viscera for
cnfcase4.16
chemical analysis. Ante-mortem injuries present on
the body of the deceased were sufficient in normal
course to cause death. He further deposed that in
his opinion cause of death of deceased Pranita
Nitin Gaikwad was shock and haemorrhage following
stab injuries over neck. He further deposed that
accordingly postmortem notes were prepared. PW-3
identified the postmortem notes shown to him.
PW-3 further deposed that he himself and Dr.Ajit
Patil signed on the said postmortem notes. He has
specifically stated in his evidence that result of
analysis was general and specific chemical testing
and 3. So there is no change in their final
opinion about the death of Pranita. He has
specifically stated that he knows sickle and knife
and the injuries mentioned in column No.17 of
postmortem notes are possible by both, sickle and
knife. During his cross examination, he has
specifically denied the suggestion that injuries
mentioned in column No.17 of postmortem notes are
cnfcase4.16
possible due to self infliction. He has
specifically stated that, they have to consider
all the injuries together while forming opinion.
He stated that if considered individually, may be
injury No.1 self inflicted or may be possible in
case of homicidal injury. He further deposed that
injury nos. 11 and 12 can be inflicted injuries,
but in the present case, both these injuries are
suggestive of defence injuries for homicidal
assault. He has specifically stated in his cross
examination that injury nos. 2 and 3 mentioned in
column No.17 of postmortem notes may be self
inflicted or homicidal. Injury nos. 4 to 8 are
not possible by self infliction, as the injuries
are cavity deep and underlying structures. He
further deposed that, if any person tries to self
inflict injury, the injury in cavity deep and
cutting the underlying structures is only possible
on the abdomen and thorax. If a person inflicted
injury on his neck, only single injury cavity deep
and cutting the underlying structures can
cnfcase4.16
be possible.
20. Prosecution examined Dr.Madhuri
Suryawanshi as PW-4, who medically examined
accused No.1 and found following injuries on his
person:
1. Right wrist joint, 5 x 3 x 2 cms
2. Left wrist joint, 6 x 3 x 1 cms
3. Over left cubital fossa 6 x 3 x 3 cms
4. Multiple abrasions over neck and chest
. PW-4 stated that accused No.1 was
admitted in the Hospital at 12.15 p.m. with
alleged history of self inflicted injuries. She
stated that cause of injuries was due to sharp
pointed weapon. Age of injuries was within 6
hours. During her cross examination, PW-4 stated
that alleged history was told by the person who
brought the patient in the Hospital. She stated
that such type of injuries are possible due to
assault by another person.
cnfcase4.16
21. Upon careful perusal of evidence of PW-4,
age of injuries was stated to be within 6 hours.
It appears that accused No.1 was brought to the
Hospital at 12.15 p.m. on 25th July, 2014.
Therefore, reasonable inference can be drawn that
the injuries sustained by accused No.1 were in
between 6.15 a.m. to 12.15 p.m. on 25th July,
2014.
22. The prosecution examined Bhausaheb
Rangnath Ghane as PW-2, to prove the motive for
commission of offence by the accused. He is father
of deceased Pranita. He deposed that marriage of
his daughter Pranita was performed with accused
No.1 on 24the May, 2014. After marriage for the
first time Pranita came to his house and after few
days, went to her matrimonial home. Pranita stayed
at her matrimonial house for 15 days and again
came back. Again accused No.1 came for taking her
to matrimonial house. Accused No.1 took her to
Rahuri. At that time accused No.1 was serving at
cnfcase4.16
Dhule, but he was residing at Rahuri. Other family
members of accused No.1 were also residing
jointly. Prior to 8-10 days of the incident,
accused No.1 and Pranita started residing at
Dhule. At that time her mother in law also started
residing with them at Dhule. Said fact was told
by Pranita to her father on telephone.
. PW-2 has specifically stated that it was
agreed to give dowry of Rs.2,00,000/- in the
marriage of Pranita. He paid Rs.1,50,000/- in the
marriage and Rs.50,000/- was remained to be paid.
Accused nos. 1 and 2 were harassing Pranita for
remaining amount of dowry. Both of them were
assaulting her for the said demand. The said fact
was told by Pranita to PW-2 on telephone. Pranita
was telling him that he should give the remaining
amount. Said amount was remaining amount of dowry.
PW-2 assured accused nos. 1 and 2 that he will pay
the amount of Rs.50,000/- within one and half
months period. Then, after 15 days, PW-2 went to
cnfcase4.16
Dhule for taking Pranita. At that time his
daughter Pranita and accused No.2 were present in
the house. Accused No.1 had gone to Rahuri. So
PW-2 halted there for one night. On the next day
accused No.1 returned in the morning. Thereafter,
PW-2 went to Ghodegaon along with Pranita.
Thereafter, all the accused came to Ghodegaon for
taking remaining amount of Rs.50,000/-. PW-2
assured the accused that he will pay remaining
amount within one month and accused should not
harass his daughter. Though PW-2 was not allowing
Pranita to go with the accused, but they
forcefully took Pranita with them. Prior to one
day of the incident, PW-2 called his daughter, at
that time she was crying on phone. Then PW-2
called accused No.1 and asked him as to why
Pranita was crying, but accused No.1 disconnected
the call. On next day i.e. on 25th July, 2014,
P.I. Shelke called PW-2 and told him about the
incident. Then PW-2 along with the family members
went to Dhule. They took dead body of Pranita and
cnfcase4.16
performed funeral at Ghodegaon.
. During his cross examination, PW-2 stated
that Pranita was always saying him on the phone
that he should return their money. He also
admitted that he was short of money. However, he
has denied the suggestion that accused No.1 had
given him an amount of Rs.7,00,000/- and he
assured accused No.1 that, he will return that
amount within 15 days. He denied the suggestion
that he threatened accused No.1 that he will not
return the said amount of Rs.7,00,000/-, and he
will take his daughter back to his house.
23. Learned counsel appearing for accused
submitted that PW-2 in his evidence stated that
his daughter was always saying him on the phone
that he should return their money. According to
him, in consonance with the statement of accused
No.1 in the note which was recovered from the spot
of incident, the amount of Rs.7,00,000/- was given
cnfcase4.16
to PW-2 and since he was not inclined to return
the said amount even on insistence of Pranita and
accused No.1, they both decided to commit suicide
and accordingly the chit/ note which was recovered
from the spot is suicide note prepared prior to
attempt of commission of suicide by accused No.1
and Pranita (deceased).
24. Upon careful perusal of statement of PW-2
in examination in chief and also in the cross
examination, he has made it clear that Pranita was
saying him on the phone that he should return
their money, i.e. remaining amount of Rs.50,000/-
towards dowry. Therefore, the prosecution has
established the motive for commission of offence
by accused No.1 through PW-2 Bhausaheb.
25. In the case of Mulakh Raj and others Vs.
Satish Kumar and other14, while considering the
case based upon the circumstantial evidence and in
14 [1992] 3 SCC 43
cnfcase4.16
particular on the point of motive, the Supreme
Court in para 17 observed thus:
"17. The question then is, who is the
author of the murder? The contention of Sri
Lalit is that the respondent had no motive
and the High Court found as a fact that the
evidence is not sufficient to establish
motive. The case is based on circumstantial
evidence and motive being absent, the
prosecution failed to establish this
important link in the chain of
circumstances to connect the accused. We
find no force in the contention.
Undoubtedly in cases of circumstantial
evidences motive bears important
significance. Motive always locks up in the
mind of the accused and some time it is
difficult to unlock. People do not act
wholly without motive. The failure to
discover the motive of an offence does not
signify its non-existence. The failure to
prove motive is not fatal as a matter of
law. Proof of motive is never an
indispensable for conviction. When facts
are clear it is immaterial that no motive
has been proved. Therefore, absence of
proof of motive does not break the link in
the chain of circumstances connecting the
cnfcase4.16
accused with the crime, nor militates
against the prosecution case. The
question, therefore, is whether Satish
Kumar alone committed the offence of murder
of his wife? In this regard Sri Lalit
pressed into service the evidence of DW 4,
the uncle of the respondent who stated that
respondent 1, his brother and father were
in the shop at the relevant time and
that the respondent also stated so in his
statement under section 313 C.P.C. This
evidence clearly establishes that the
respondent was not at home when the
occurrence had taken place. This evidence
has to be considered in the light of the
attending circumstances and the conduct of
Satish Kumar. It is established from the
evidence that the deceased and the first
respondent alone were living in the upstair
room. The occurrence took place in the
broad day time in their bed room. The
deceased at that time was having three
months old child. What had happened to the
child at the time when the ghastly
occurrence had taken place is anybody's
guess. Normally three months child would be
in the lap of the mother unless somebody
takes into his/her lap for play. It is not
the case. It would be probable that after
the murder, the child must have been taken
cnfcase4.16
out and the dead body was burnt after
pouring kerosene and litting fire.
Therefore, the one who committed the
offence must have removed the child later
from the room. Admittedly the day of
occurrence is a Sunday and that too in the
afternoon. Therefore, the shops must have
been closed. DW 2, Post Office
Superintendent, examined by the defence,
categorically admitted that the handwriting
of all the four telegrams was of the same
person. Satish Kumar admitted that he
issued two telegrams including the one to
PW 15 and the two were issued by his
father. Therefore, four telegrams were
issued by respondent 1 alone. When the wife
was practically charred to death an
innocent and compassionate husband would be
in a state of shock and would not move
from the bedside of the deceased wife and
others would attend to inform the
relations. It is also his case that he
phoned to the police station and informed
of the occurrence. Evidence is other way
about. An attempt was made to have the
matter compromised, but failed. Thereafter
they were found to be absconding. The
evidence of DW 4 (maternal uncle) that
respondent 1 was in the shop thus gets
falsified and his is a perjured evidence.
cnfcase4.16
This false plea is a relevant
circumstance which militates against his
innocence. The death took place in the
bedroom of the spouse and the attempt to
destroy the evidence of murder by burning
the dead body; the unnatural conduct of
Satish Kumar, immediately after the
occurrence; the false pleas of suicide and
absence from house are telling material
relevant circumstances which would complete
the chain of circumstantial evidence
leading to only one conclusion that Satish
Kumar alone committed the ghastly offence
of murder of his wife, Shashi Bala."
. Therefore, it is not always necessary for
the prosecution to prove motive when the case is
based upon the circumstantial evidence.
26. The prosecution examined Kiran Baburao
Kamble as PW-8, who was serving as Awwal Karkoon
in Collector office, who recorded the statement of
accused No.1 Nitin when he was taken to the
Hospital. Since accused No.1 Nitin survived, the
said statement cannot be considered as dying
cnfcase4.16
declaration. During his cross examination, PW-8
stated that there were injuries on the neck of the
patient i.e. accused No.1 Nitin. PW-8 has
specifically denied the suggestion that as there
was wound on the neck of the patient i.e. accused
No.1, he was not able to speak properly. Even the
Medical Officer (PW-4), who examined the patient
i.e. accused No.1, stated that the patient was in
a position to give statement and accordingly
statement of Nitin was recorded. Therefore, his
deposition in cross examination clearly reveals
that there was no wound on the neck of the accused
No.1 and he was able to speak properly and
accordingly his statement was recorded by PW-8.
27. Navnath Damodhar Lahange (PW-9) was the
Investigating Officer, who carried out the
investigation of Crime No.168 of 2014, registered
by PW-1 Dr.Pravin. PW-9 has narrated details of
visiting the spot, preparing the spot panchnama,
recovery of sickle, blade and knife which were
cnfcase4.16
stained with blood. He further stated that there
was one bottle of poison named 'Tactic', was lying
on the spot, one steel glass, blade of super max
company, two mobiles and one chit, one ball-pen
were also lying near it. All the said articles
were seized. There were blood stains on the bed.
There were pool of blood where accused No.1 and
deceased Pranita were lying. Blood samples were
taken. There was blood on the mattress so cover
on the mattress was seized. In all 13 Articles
were seized from the spot and after following
procedure, those articles were sent to the
Chemical Analyzer. The clothes of accused No.1
i.e. T-shirt and pant was also recovered. The
clothes of deceased Pranita were also recovered
and sent to chemical analyzer. PW-9 has also
narrated details about the recovery of alleged
suicide note. He further stated that said suicide
note was sent to the handwriting expert and it was
revealed that said handwriting was of accused No.1
Nitin. PW-9 has also adverted to the contents of
cnfcase4.16
the said suicide note during his cross
examination. However, he has specifically stated
in the cross examination that PW-2 Bhausaheb has
not stated in his statement the particulars of
dates, months and year when the accused have
demanded dowry or subjected deceased to cruelty.
28. Upon considering the evidence in its
entirety, the following circumstances emerged on
record, and are proved by the prosecution:
i] Death of Pranita was within two
months from the date of marriage. The said
fact is proved by the prosecution by
examining PW-2 Bhausaheb. His evidence to
that effect remained un-shattered.
ii] The prosecution has also proved
through PW-2 motive that he was supposed to
pay balance amount of Rs.50,000/- to
accused No.1 towards the remaining amount
cnfcase4.16
of dowry. However, he could not pay due to
his poor financial condition. One day prior
to the incident, he received phone call
from Pranita and he heard that, she is
crying. When he made enquiry with accused
No.1, accused No.1 did not respond to his
call.
iii] The prosecution has proved through
PW-1 Dr.Pravin, PW-6 Kumar, PW-7 Swapnil,
and other witnesses that the spot of
incident was official residence of accused
No.1 at Dhule.
iv] The prosecution has also proved
that, on the relevant night and till front
door of the house was broke open only
accused No.1 and deceased Pranita were
present in the house. The house was closed
from the inside. PW-1 Dr. Pravin has stated
in his evidence that both the doors of the
cnfcase4.16
house were closed from inside. The other
witnesses have also stated that the front
door of the house was closed from inside.
They have also stated that when the police
arrived at the scene of occurrence, they
broke open the door and all of them found
that Pranita (deceased) was in dead
condition, having multiple injuries around
her neck and lying in pool of blood and
accused No.1 Nitin was also found lying
there in unconscious condition. None other
than deceased Pranita and accused No.1
Nitin were found in the house.
v] A chit, as claimed by accused
No.1, as suicide note, lying near T.V.,
was recovered from the house of accused
No.1. However, there were no blood stains
noticed or found on said suicide note.
Admittedly, said suicide note was not
signed by deceased Pranita, and it reveals
cnfcase4.16
that, it was unilateral act of accused
No.1, to write contents of such note and
keep the same near the T.V.
vi] It can be gathered safely from the
evidence of the prosecution witnesses that,
it was not possible to enter through window
or come out from said window, which was on
the upper side of the front door of the
house of accused No.1.
vii] The prosecution has proved through
the evidence of witnesses that sickle,
knife and blade were lying on the spot and
same were stained with blood.
viii] Upon careful perusal of the
evidence of two Medical Officers i.e. PW-3
Dr.Ajit and PW-4 Dr.Madhuri and also the
postmortem notes it is noticed that,
injuries of deceased Pranita and accused
cnfcase4.16
No.1 were inflicted at different times.
PW-3 Dr. Ajit in his evidence, has ruled
out the possibility of death of Pranita due
to suicide, inasmuch as except injury
nos. 2 and 3, he has stated that all other
injuries are ante-mortem in nature and
death is homicidal. Therefore, possibility
of commission of suicide by Pranita or
attempt of suicide by accused No.1 as
stated in a chit / note recovered from the
spot, is completely ruled out. PW-4 Dr.
Madhuri, who examined accused No.1, and
also PW-8 Kiran, in their cross examination
have stated that injuries sustained by
accused No.1 Nitin were not deep. PW-8
Kiran has stated in his evidence that when
accused No.1 Nitin was brought in the
Hospital he was able to speak.
ix] The defence taken by accused No.1 in
his statement recorded under Section 313 of
cnfcase4.16
the Criminal Procedure Code that some other
person / persons came inside the house and
assaulted Pranita and Nitin or Pranita
assaulted deceased, is completely ruled out
in view of the evidence of PW-1 Dr. Pravin
and other prosecution witnesses, who have
stated that both the doors of the house
were closed from inside. If the third
person/persons would have entered in the
house, and assaulted accused No.1 and
Pranita, in that case they could have
assaulted indiscriminately, without
choosing particular portion of neck of
deceased Pranita or wrist of accused No.1.
It cannot happen that Pranita sustained
injuries around the neck and accused No.1
sustained injuries only on wrist and
abrasions on neck and chest. It is stated
by Dr. Ajit Pathak [PW-3] that, he has gone
through the C.A. report regarding the
samples collected by him. The result of
cnfcase4.16
analysis was general and specific chemical
testing does not reveal any poison in
Exhibit Nos.1, 2 and 3. It has also come on
record that, a bottle of poison which was
found on the spot, was in fact sealed with
a plastic cover on it over its lid which
further leads to a conclusion that the
bottle of poison was not even opened by the
accused.
x] It is stated by PW-6 Kumar that
mother of accused No.1 Nitin called Nitin
on telephone during the morning hours on
the date of incident, however, she could
not get any reply and therefore she asked
the witness PW-6 to find out the
whereabouts of Nitin and accordingly at
about 10.15 a.m. he knocked the door of
accused No.1, however, there was no
response. Therefore, it appears that mobile
phone of accused No.1 was kept in switched
cnfcase4.16
off condition.
xi] The prosecution has proved, by
bringing on record cogent and convincing
evidence, that during the relevant night
and till door of the house was broke open,
deceased Pranita and accused No.1 Nitin
only, were present in the house, and
therefore accused No.1 Nitin, was obliged
to discharge the onus under which
circumstances Pranita died, since those
facts were within his special knowledge.
. It is the duty of the accused to explain
the incriminating circumstances proved against him
while making a statement under Section 313 of the
Code of Criminal Procedure. Taking more than one
defence with falsity, is an additional link in the
chain of circumstances to sustain the charges
against him. Accused No.1 Nitin in his statement
under Section 313 of the Criminal Procedure Code
cnfcase4.16
has stated thus:
"During that night, me & my wife slept in
our house, but there was no light as we
had switched off the light, in the dark
somebody gave blows with weapons on me and
I became unconscious. I do not know who
did it. I do not know as to what happened
after the blows sustained by me."
. However, in the chit recovered from the
spot, accused No.1 tried to suggest that he
himself and his wife Pranita decided to commit
suicide since PW-2 Bhausaheb refused to return the
amount of Rs.7,00,000/- which was given by him to
PW-2 Bhausaheb. In fact accused No.1 had not led
any evidence to that effect by examining the
defence witness. Accused No.1 was working as a
driver and how he was having such huge amount of
Rs.7,00,000/-, is also not brought on record by
accused No.1 by examining the defence witnesses.
As already observed, if the evidence of both the
medical officers i.e. PW-3 and PW-4, and
cnfcase4.16
postmortem notes and other medical evidence is
considered in its entirety, the age of injuries
inflicted to deceased Pranita and accused No.1
Nitin are stated at different times. Therefore,
the possibility of commission of suicide either by
Pranita or attempt of commission of suicide by
accused No.1, is completely ruled out.
29. As already observed, accused No.1 Nitin
has taken different stands/ raised more than one
defence and thereby avoided to discharge the onus
shifted upon him under Section 106 of the Indian
Evidence Act, to explain under which circumstances
Pranita died. It would have been different matter,
if one defence would have been raised by accused
No.1, either by relying upon the contents of the
chit/note recovered from the spot of incident or
the defence taken by him under Section 313 of the
Code of Criminal Procedure or that Pranita
assaulted him. However, Accused No.1 avoided to
discharge the onus shifted upon him under
cnfcase4.16
Section 106 of the Indian Evidence Act, by taking
improbable defence and relying upon contents of
chit recovered from the house.
30. The Supreme Court in the case of State of
Rajasthan Vs. Thakur Singh15 while explaining the
scheme of provisions of Sections 101 to 106 of the
Evidence Act, 1872, and its scope, in para 22 to
24 held thus:
22. The law, therefore, is quite well
settled that the burden of proving the
guilt of an accused is on the prosecution,
but there may be certain facts pertaining
to a crime that can be known only to the
accused, or are virtually impossible for
the prosecution to prove. These facts need
to be explained by the accused and if he
does not do so, then it is a strong
circumstance pointing to his guilt based on
those facts.
23. Applying this principle to the facts
of the case, since Dhapu Kunwar died an
unnatural death in the room occupied by her
15 2014 (12) SCC 211
cnfcase4.16
and Thakur Singh, the cause of the
unnatural death was known to Thakur Singh.
There is no evidence that anybody else had
entered their room or could have entered
their room. Thakur Singh did not set up any
case that he was not in their room or not
in the vicinity of their room while the
incident occurred nor did he set up any
case that some other person entered the
room and caused the unnatural death of his
wife. The facts relevant to the cause of
Dhapu Kunwar's death being known only to
Thakur Singh, yet he chose not to disclose
them or to explain them. The principle
laid down in Section 106 of the Evidence
Act is clearly applicable to the facts of
the case and there is, therefore, a very
strong presumption that Dhapu Kunwar was
murdered by Thakur Singh.
24. It is not that Thakur Singh was
obliged to prove his innocence or prove
that he had not committed any offence. All
that was required of Thakur Singh was to
explain the unusual situation, namely, of
the unnatural death of his wife in their
room, but he made no attempt to do this."
31. In the facts of the present case,
cnfcase4.16
accused No.1, instead of offering explanation
chose to take improbable defence. Therefore, the
subsequent conduct of the accused No.1 is also an
additional circumstance which can be added in the
chain of circumstances elaborated herein above, by
taking recourse to Section 8 of the Indian
Evidence Act.
32. Upon re-appreciating the entire evidence
on record, we are of the considered view that,
each circumstance in the chain of circumstances
has been firmly established by the prosecution.
The chain of the circumstance is complete. The
facts established are consistent only with the
hypothesis of the guilt of accused No.1 Nitin. The
evidence brought on record and circumstances
established lead to only one conclusion that,
accused No.1 committed an offence punishable under
Sections 302, 498-A and 506 of the Indian Penal
Code. Therefore, in our considered opinion, the
findings recorded by the Additional Sessions
cnfcase4.16
Judge, Dhule in the impugned Judgment are in
consonance with the evidence on record, which need
no interference. The trail Court has rightly
convicted accused No.1 for the offences punishable
under Sections 302, 498-A and 506 of the Indian
Penal Code.
33. So far as other accused i.e. accused
Nos.2, 3 and 4 are concerned, except the evidence
of PW-2 Bhausaheb, that too without mentioning
specific overt acts qua those accused, we are of
the opinion that the alleged offence punishable
under Section 498-A against them is not proved. We
find it difficult to sustain their conviction for
the offence punishable under Section 498-A of the
Indian Penal Code. It has come on record that on
the date of incident nobody was residing with the
couple at Dhule except accused No.1 and Pranita
Other accused were residing at Rahuri. Therefore,
there is serious doubt about the involvement of
accused Nos.2 to 4. Therefore, we are of the
cnfcase4.16
opinion that benefit of doubt deserves to be
extended in favour of accused Nos. 2, 3 and 4.
34. In the light of discussion in foregoing
paragraphs, we are of the considered view that,
the conviction of accused No.1 Nitin Balkisan
Gaikwad for the commission of offence punishable
under Section 302, 498-A and 506 of the Indian
Penal Code vide Section 235(2) of the Code of
Criminal Procedure by the Trial Court is proper
and sustainable and accordingly same stands
confirmed.
35. The next question is whether the death
sentence awarded to the accused No.1 is
sustainable on the facts and circumstances of the
case, i.e. whether the present case can be termed
to be "rarest of the rare case".
36. The circumstances brought on record
against accused no.1 by the prosecution clearly
cnfcase4.16
shows that, accused no.1 preplanned the offence
when he got opportunity while the deceased Pranita
was alone in his company and with extreme cruelty
and brutality, committed her murder with sharp
weapons. The circumstances on record show that,
the murder of the victim was committed in the
manner which was extremely brutal, gruesome,
diabolical, cold-blooded, cruel and painful
manner. Accused no.1 had no regard for human
life. He had no feelings of humanity or
compassion for the poor woman who has stayed in
his company for two months in his own house as
wife. However, in the facts of this case, there
are few mitigating circumstances in favour of
accused no.1. The neighbor of accused no.1 i.e.
PW-6 Kumar stated in his cross examination that,
relations between accused no.1 Nitin and his
wife Pranita was cordial. PW-2 Bhausaheb, father
of deceased Pranita, in his cross examination
stated that, Pranita wanted to stay with accused
no.1. The prosecution has not brought on record
cnfcase4.16
criminal antecedents / past criminal record, if
any, against accused no.1. The age of accused
no.1 at the relevant time was 31 years.
37. Therefore, keeping in view the parameters
applied by the Supreme Court in the cases of (i)
Bachan Singh Vs. State of Punjab 16, (ii) Macchi
Singh and others Vs. State of Punjab17, (iii)
Shankar Kisanrao Khade Vs. State of Maharashtra 18,
(iv) Sandeep Vs. State of Uttar Pradesh19 and (v)
Neel Kumar Alias Anil Kumar Vs. State of Haryana 20,
we cannot subscribe the order of the learned Trial
Court imposing death sentence on the accused.
Thus, in the facts and circumstances of the case,
we set aside the death sentence and award life
imprisonment to accused no.1. The accused no.1
must serve a minimum of 30 years in jail without
remissions, before consideration of his case for
16 (1980) 2 S.C.C.684
17 (1983) 3 S.C.C.470
18 (2013) 5 S.C.C.546
19 (2012) 6 S.C.C.107
20 (2012) 5 S.C.C.766
cnfcase4.16
premature release. The sentence imposed for the
offence under Section 498-A of the Indian Penal
Code shall maintain as it is awarded by learned
Trial Court.
38. All the sentences imposed on accused no.1
to run concurrently.
39. The conviction of accused nos.2 to 4 for
the offence punishable under Section 498-A read
with 34 of the Indian Penal Code stands quashed
and set aside and they stand acquitted from the
offences for which they were charged.
40. Accused no.1 be given set off under
Section 428 of the Criminal Procedure Code.
41. In view of the above, Criminal Appeal
No.701/2016, to the extent of accused no.1 Nitin
Balkisan Gaikwad stands dismissed. Criminal Appeal
No.701/2016 to the extent of accused No.2 -
cnfcase4.16
Vimalbai Balkisan Gaikwad, accused no.3 -
Dnyaneshwar Balkisan Gaikwad and accused no.4 -
Pappu Balkisan Gaikwad, stands allowed.
42. The Confirmation Reference stands
answered accordingly.
[K.K. SONAWANE, J.] [S.S. SHINDE, J.]
asb/MAR17
