The State Of Mah vs Hemant Kumar Basavraj Appa ...
2017 Latest Caselaw 8429 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.34 OF 2009 

The State of Maharashtra,
Through Sadar Bazar Police
Station, Tq. and Dist. Jalna                 ..Appellant
                                             (Prosecution)
               Vs.

1. Hemant Kumar s/o. Basavraj 
   Appa Radenwar, Age : 40 years,
   Occ: Business, r/o.Ranibhimar,
   Dist. Haweri, Karnataka State             ..Respondent no.1
                                             (Original   accused  
                                             no.1)

2. Mahadevappa Basavrajappa                  Appeal dismissed
   Rademwar, Age : 36 years,                 against resp.
                                             nos.2 and 3
3. Lingappa Veerappa Sutgatti,               as per Court's
   Age : 48 years,                           order dt.16.1.2009

                         ----
Mr. S.K.Tambe, APP for appellant 

Mr. Joydeep Chatterji, Advocate for respondent
                         ----

                         CORAM : SUNIL P. DESHMUKH AND
                                 SANGITRAO S. PATIL, JJ.
                         DATE  : NOVEMBER 03, 2017  

JUDGMENT (PER SANGITRAO S. PATIL, J.) :

The State/prosecution has taken exception to

the judgment and order dated 07.05.2008 passed in

Sessions Case No.41 of 2006 by the learned Ad-hoc

2 cri.appeal.34.09

Addl. Sessions Judge, Jalna acquitting the

respondents of the offence punishable under Section

302 of the Indian Penal Code ("I.P.C.", for short).

2. The deceased Vijayalaxmi was the wife of

respondent no.1. Respondent no.2 is the brother,

while respondent no.3 is the maternal uncle of

respondent no.1. All of them hail from the State of

Karnataka. Respondent no.1 was trading in betel-

nuts. He had supplied betel-nuts on credit to the

proprietor of Sanket Gutkha Company, Jalna. An amount

of Rupees One Crore was due and payable from Sanket

Gutkha Company to respondent no.1. Respondent no.1

had camped at Jalna in Madhuban Hotel in room no.104

for recovery of the dues from the proprietor of

Sanket Gutkha Company since before 5 to 6 months of

the incident that took place in the night intervening

22.01.2006 and 23.01.2006. The deceased Vijayalaxmi

also was accompanying respondent no.1 in order to

exert pressure on the proprietor of Sanket Gutkha

Company to pay the amount due from him. Respondent

3 cri.appeal.34.09

no.1 called respondent nos.2 and 3 as also his

brother-in-law i.e. the informant - namely, Basavraj

Shivappa Itgi (PW 6), resident of Haweri, Karnataka

State, to Jalna to seek their assistance for recovery

of the dues.

3. It is the case of the prosecution that

respondent no.1 used to hurl abuses and beat

Vijayalaxmi on trifle grounds. On 23.01.2006, at

about 8.30 a.m., the informant - Basavraj (PW 6)

received a phone call from his mother, who was

residing at Haweri, whereby he was asked to visit

room no.104 in Madhuban Hotel, since she had received

a phone call from respondent no.1 that Vijayalaxmi

was hanging against a ceiling fan. Accordingly, the

informant went in front of that room. At that time,

respondent no.1 was found locking the room from

outside and proceeding away along with respondent

nos.2 and 3. When the informant asked them as to

where they were going, they told that they were going

to Police Station to lodge report.

4 cri.appeal.34.09

4. After sometime, police came there since the

hotel owner had phoned to police. Room no.104 was

opened in the presence of police. It was noticed

that Vijayalaxmi was lying on a cot in dead

condition. There was bluish mark near left side of

her neck. Since respondent nos.1 to 3 did not inform

the informant about death of Vijayalaxmi, he

entertained suspicion against them for killing her.

He, therefore, lodged report against them in Police

Station, Jalna.

5. On the basis of the report lodged by the

informant, Crime No.26 of 2006 came to be registered

against the respondents for the offence punishable

under Section 302 read with Section 34 of the I.P.C.

Investigation followed. Inquest panchnama of the body

of the deceased Vijayalaxmi was prepared. Her dead

body was referred to the Civil Hospital, Jalna for

post mortem. The Medical Officer conducted post-

mortem and opined that Vijayalaxmi died due to

'asphyxia secondary to compression of neck'. The

5 cri.appeal.34.09

statements of witnesses were recorded. After

completion of the investigation, the respondents came

to be charge-sheeted for the above-mentioned

offences.

6. The offence punishable under Section 302 of

the I.P.C. being exclusively triable by the Court of

Session, the learned Chief Judicial Magistrate,

Jalna, committed the case to the Court of Session for

trial.

7. The learned Ad-hoc Addl. Sessions Judge,

Jalna, to whom the case was assigned, framed charge

against the respondents for the above-mentioned

offence vide Exh.48 and explained the contents

thereof to them, to which they pleaded not guilty and

claimed to be tried. They denied that they committed

murder of Vijayalaxmi. According to them, she

committed suicide due to frustration and depression.

8. The prosecution examined sixteen witnesses

to establish guilt of the respondents for the above-

6 cri.appeal.34.09

mentioned offence. After scrutinizing the evidence,

the learned trial Judge did not find it sufficient to

bring home guilt of the respondents for the above-

mentioned offence. The learned trial Judge inferred

that the deceased Vijayalaxmi committed suicide by

hanging herself and acquitted the respondents of the

above-mentioned offence.

9. The prosecution preferred the present appeal

against the judgment of acquittal passed by the trial

Court in favour of the respondents. At the time of

admission of the appeal, this Court considered the

evidence on record and as per the order dated

16.01.2009, held that there was no incriminating

evidence against respondent nos.2 and 3. Therefore,

the appeal came to be dismissed against respondent

nos.2 and 3 and admitted against respondent no.1

only. The prosecution did not challenge the order

dated 16.01.2009 dismissing the appeal against

respondent nos.2 and 3. The said order has attained

finality.

7 cri.appeal.34.09

10. The learned A.P.P. submits that though there

is no direct evidence to connect respondent no.1 with

the murder of Vijayalaxmi, it is established by the

prosecution that respondent no.1 and Vijayalaxmi only

were in room No.104 of Madhuban Hotel in the night of

the incident. Since the deceased Vijayalaxmi was in

the custody/company of respondent no.1, as per

Section 106 of the Evidence Act, he was under an

obligation to explain the circumstances under which

she died since the said facts were within his special

knowledge. According to the learned A.P.P.,

respondent no.1 did not explain as to how Vijayalaxmi

died. He further points out to the medical evidence,

which shows that Vijayalaxmi died due to 'asphyxia

secondary to compression of neck'. The learned A.P.P.

submits that neck of Vijayalaxmi was pressed and

therefore, she suffered asphyxia leading to her

death. However, respondent no.1 tried to make a show

that Vijayalaxmi hanged herself by means of saree

8 cri.appeal.34.09

against ceiling fan. He submits that dead body of

Vijayalaxmi was not found hanging against the ceiling

fan of the room, but was found lying on the cot.

Therefore, the theory of suicide set up by respondent

no.1 cannot be accepted. He submits that instead of

informing about death of Vijayalaxmi to the

informant, who was very much present in front of

Hotel Madhuban, respondent no.1 informed that fact to

the mother of the deceased Vijayalaxmi. This fact

also indicates guilty mind of respondent no.1. He

submits that the oral evidence of the brothers and

son of the deceased Vijayalaxmi shows that she was

being ill-treated and beaten by respondent no.1 on

trifle grounds. He submits that there is a complete

chain of circumstances proving that respondent no.1

only committed murder of Vijayalaxmi. According to

him, the learned trial Judge wrongly rejected the

evidence on record and acquitted respondent no.1.

11. On the other hand, the learned Counsel for

respondent no.1 submits that the deceased Vijayalaxmi

9 cri.appeal.34.09

was residing with respondent no.1 since before 5 to 6

months of the incident in room no.104 of Madhuban

Hotel at Jalna. There was no reason for him to

illtreat her. The informant, who is the brother of

the deceased Vijayalaxmi, was called by respondent

no.1 himself to Jalna from his native place in order

to get his support for recovery of dues from the

proprietor of Sanket Gutkha Company. Respondent no.1

had called his other relatives i.e. brother and

maternal uncle also, so as to exert pressure on the

proprietor of Sanket Gutkha Company to pay his dues.

The informant never complained against respondent

no.1 to anybody in respect of the alleged ill-

treatment meted out by respondent no.1 to the

deceased Vijayalaxmi. He submits that the informant

himself admits that the deceased Vijayalaxmi was

looking after the business of respondent no.1 at his

native place in Karnataka State. Respondent no.1 and

the deceased Vijayalaxmi had purchased betel-nuts

from various farmers on credit. Those farmers were

10 cri.appeal.34.09

pressing the deceased Vijayalaxmi hard for payment of

their dues. Since she was not in a position to pay

that amount, she had come to reside at Jalna with

respondent no.1. Her mother had phoned her that the

farmers/creditors of the native place of the deceased

Vijayalaxmi were insisting for payment of their dues

and that they were using filthy language against her.

Since respondent no.1 was not getting his dues

recovered from the proprietor of Sanket Gutkha

Company, the deceased Vijayalaxmi was not in a

position to go back to her native place with money

for being paid to her creditors. Even she was not

ready to meet her children, who were at her native

place, unless money was paid to her for being given

to the creditors/ farmers of her native place. She

was very much nervous because she had not got money

from Sanket Gutkha Company. She used to express that

why for she should live. The learned Counsel submits

that due to frustration/depression, the deceased

Vijayalaxmi committed suicide by hanging herself

11 cri.appeal.34.09

against ceiling fan. He submits that the medical

evidence also probablises the defence of respondent

no.1. He submits that respondent no.1 personally

informed the informant about the suicidal death of

Vijayalaxmi, who, in turn, phoned Basavraj Pujar (PW

10) and called him to room no.104. After arrival of

Basavraj (PW 10), the dead body of Vijayalaxmi was

removed from the ceiling fan and placed on the cot in

the presence of the informant. Respondent no.1

further phoned the mother of Vijayalaxmi also about

her death. He submits that false report has been

lodged against respondent no.1. He supports the

impugned judgment and order and prays that the appeal

may be dismissed.

12. Indisputably, there is no direct evidence to

connect respondent no.1 with the death of the

deceased Vijayalaxmi. The case is entirely depending

on circumstantial evidence. There is no dispute that

respondent no.1 and the deceased Vijayalaxmi were

residing in room no.104 of Madhuban Hotel for about 5

12 cri.appeal.34.09

to 6 months before the incident that took place in

the night intervening 22.01.2006 and 23.01.2006.

13. Basavraj Pujar (PW 10)(Exh.80), who was one

of the persons called by respondent no.1 from his

native place Jalna, for the purpose of recovery of

money from Sanket Gutkha Company, states that he used

to cook food for respondent no.1 and the deceased

Vijayalaxmi. He had noticed certain bickering between

respondent no.1 and the deceased Vijayalaxmi whenever

there was some delay on the part of the deceased

Vijayalaxmi in making Pan for respondent no.1.

However, this statement would not be sufficient to

show that respondent no.1 had motive to finish the

deceased Vijayalaxmi on such a trifle ground. He

further states that in the morning of 23.01.2006, the

informant phoned him and asked him to come to

Madhuban Hotel where Vijayalaxmi died. He then went

to the room in the hotel along with the informant.

Respondent no.1 and the informant entered the room

and saw that the dead body of the deceased

13 cri.appeal.34.09

Vijayalaxmi was connected to the ceiling fan of the

room by means of a saree. It has come in his cross-

examination that the dead body of the deceased

Vijayalaxmi was removed from the ceiling fan and

placed on the cot. Thereafter, respondent no.1 locked

the room and went to the Police Station. If this

version is considered, the evidence of the informant

recorded at Exh.74 that the dead body was not hanging

against the ceiling fan of the room and was simply

lying on the cot, cannot be accepted. If that be so,

the case of the prosecution that the neck of the

deceased Vijayalaxmi was pressed when she was

sleeping on the cot, cannot be accepted.

14. Dr.Kulkarni (PW 16)(Exh.98), who conducted

post-mortem of the body of the deceased Vijayalaxmi

on 23.01.2006, noted the following external

injuries :-

(i) Abrasion over the neck on left side starting from mid-line and extending laterally and superiorly slowly tapering,

14 cri.appeal.34.09

surrounding tissue swollen, wound was dark red in colour size of injuries/wound was 7 x 1½ inches wide towards the mid-line.

(ii) The abrasion was continuous on right side with a contusion going posteriorly, and up of size 6 x 1" similar contusion was seen on left side in continuity with abrasion going posteriorly and up of size 3 x 1 inch.

Both contusions did not meet posteriorly leaving an area of 5" in between.

The subcutaneous tissue was congested and show haematoma in the area below the abrasion. No evidence of fracture of cartilages. The great vessels of neck are congested and enlarged. The muscles below the injury showed congestion and accumulation of blood.

Dr. Kulkarni (PW 16) states that the above-mentioned

injuries were ante-mortem. On internal examination,

he found that gums and tongue were bluish. Tongue was

not protruded. Liver was congested. Larynx, Trachea

15 cri.appeal.34.09

and both lungs were congested. He states that death

might have been caused of asphyxia secondary to

compression of neck.

15. It has come in his cross-examination that in

case of hanging, the tongue may or may not protrude.

He states that the injuries mentioned in column no.17

of the post-mortem report (Exh.99) i.e.above-referred

external injuries, were indicating symptoms of

hanging. If this evidence is considered, the case of

the prosecution that the the deceased Vijayalaxmi

died of compression of neck when she was sleeping on

the cot, cannot be accepted. On the contrary, the

medical evidence probablises the defence of

respondent no.1 that the deceased Vijayalaxmi

committed suicide by hanging herself.

16. It is true that respondent no.1 and the

deceased Vijayalaxmi were inside room no.104 of

Madhuban Hotel in the night of the incident. Since

respondent no.1 was inside of that room, it was

16 cri.appeal.34.09

expected of him to explain the circumstances under

which the deceased Vijayalaxmi died. Respondent no.1

has come with a specific case that the deceased

Vijayalaxmi committed suicide by hanging herself.

17. The informant himself states in his cross-

examination that the business of respondent no.1 in

the village Haweri was being looked after by the

deceased Vijayalaxmi. She had purchased betel-nuts on

credit from farmers in the absence of respondent

no.1. The dues of the farmers were not paid by the

deceased Vijayalaxmi since the amount of about Rupees

One Crore due and payable from Sanket Gutkha Company

was not paid to respondent no.1 and therefore, the

deceased Vijayalaxmi had come to Jalna to reside with

respondent no.1. He admits that the deceased

Vijayalaxmi was staying with respondent no.1 so as

to enable her to discharge her liability because of

purchasing of betel-nuts on credit from farmers. He

further admits that his mother was saying on phone

that the creditors/farmers of the deceased

17 cri.appeal.34.09

Vijayalaxmi were troubling her for payment of their

money and they were using filthy language. The

children of the deceased Vijayalaxmi were residing at

Haweri only. This witness admits that the deceased

Vijayalaxmi was desirous of meeting her children but

unless payment was made to her, she was not ready to

go to meet her children. He admits that the deceased

Vijayalaxmi used to remain unhappy on that count. He

specifically admits that she used to say as to why

for she should live. This evidence clearly indicates

the mental condition of the deceased Vijayalaxmi. She

was very much desirous to meet her children who were

residing at Haweri in Karnataka State. However,

because of fear of her creditors, she was not in a

position to go there for want of money, even to meet

her children. She was very much worried about the

situation created by her creditors as they were not

paid their dues by her. In the circumstances, it was

probable on the part of the deceased Vijayalaxmi to

end her life out of frustration and depression.

18 cri.appeal.34.09

18. There was no reason for respondent no.1 to

finish the life of his wife. He was not going to gain

anything by finishing her, who, in fact, was helping

him by looking after his business at native place in

his absence. Thus, the motive to finish the deceased

Vijayalaxmi on the part of respondent no.1 was

totally absent.

19. All these facts and circumstances of the

case show that the defence of respondent no.1 that

the deceased Vijayalaxmi committed suicide by hanging

herself, is quite natural and probable. Thus, he has

explained the circumstances under which the deceased

Vijayalaxmi died and discharged the burden that was

cast on him vide Section 106 of the Evidence Act.

20. The evidence of the brothers and minor son

of the deceased Vijayalaxmi that she was being ill-

treated by respondent no.1 for money, is totally

vague, general and scanty. Had respondent no.1

subjected the deceased Vijayalaxmi to cruelty, she

19 cri.appeal.34.09

would not have come to reside with him from her

native place. The case of the prosecution that

respondent no.1 committed murder of the deceased

Vijayalaxmi on account of trifle domestic disputes,

is not at all natural, probable and acceptable.

21. The prosecution failed to establish that

respondent no.1 committed murder of the deceased

Vijayalaxmi. The evidence on record probablises the

defence of respondent no.1 that the deceased

Vijayalaxmi committed suicide by hanging herself.

The learned trial Judge rightly appreciated the

evidence on record and rightly acquitted respondent

no.1. The view taken by the learned trial Judge is

quite a possible and probable view. We concur with

the findings recorded by the learned trial Judge and

hold respondent no.1 not guilty of the above-

mentioned offence.

22. The appeal is sans substance. It is liable

to be dismissed and accordingly dismissed. Bail bonds

20 cri.appeal.34.09

of respondent no.1 are cancelled. He is set at

liberty.

[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]

kbp