Laxmibai Datta Shrirame vs The State Of Mah
2017 Latest Caselaw 7878 Bom

                                                   Cri. Appeals 679, 681/02
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                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 679 OF 2002

Laxmibai w/o. Datta Shrirame,
Age 30 years, Occu. Household,
R/o. Salagara (Bk.), Tq. Mukhed,
Dist. Nanded.                                       ....Appellant.

               Versus


The State of Maharashtra
Through Police Station Mukhed,
At the instance of Digambar
Shrirame, R/o. Salagara (Bk.),
Tq. Mukhed, Dist. Nanded.                           ....Respondent.


Mr. M.D. Narwadkar, Advocate for appellant.
Mr. V.S. Badakh, APP for respondent/State.

                                    WITH
                       CRIMINAL APPEAL NO. 681 OF 2002

Sk. Sadiq s/o. Sk. Hussainsab,
Age 35 years, Occu. Labour,
R/o. Salgara (Bk.), Tq. Mukhed,
Dist. Nanded.                                       ....Appellant.

               Versus


The State of Maharashtra
Through Police Station Mukhed,
At the instance of Digambar
Pandhari Shrirame, R/o. Salgara (Bk.),
Tq. Mukhed.                                         ....Respondent.


Mr. M.V. Deshpande, Advocate for appellant.
Mr. V.S. Badakh, APP for respondent/State.




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                                                         Cri. Appeals 679, 681/02
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                                   CORAM   :   T.V. NALAWADE AND
                                               ARUN M. DHAVALE, JJ.

RESERVED ON : 04/10/2017 PRONOUNCED ON : 06/10/2017

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

. Both the appeals are filed against judgment and order of

Sessions Case No. 14/2002, which was pending in the Court of

learned Additional Sessions Judge at Biloli, District Nanded. The Trial

Court has convicted both the appellants for the offence punishable

under section 302 r/w. 34 of Indian Penal Code ('IPC' for short) and

each appellant is sentenced to suffer imprisonment for life. Both the

sides are heard.

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

appeals can be stated as follows :-

Deceased Datta was brother of first informant Digamber.

Manohar and Ankush are also brothers of first informant and these

brothers are resident of village Salgara (Bk.), Tahsil Mukhed, District

Nanded. The houses of these brothers are situated adjacent to each

other and they were living separate from each other at the relevant

time. Accused No. 1 is the widow of deceased Datta and accused No.

2 had an affair with accused No. 1 and there was dispute due to this

affair between the deceased and accused No. 1. The deceased has

left behind three issues aged about 14, 12 and 10 years. The

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deceased, accused No. 1 and three issues were living in the house of

deceased. Accused No. 2 is also resident of the same village.

3) The incident in question took place on the night between

11.12.2001 and 12.12.2001 in the house of deceased. On the

evening of 11.12.2001 the deceased had returned from out station

after attending a marriage function. On 11.12.2001 the harvesting of

sugarcane crop which was standing in the land of first informant was

to be started. When the first informant was proceeding to his field at

about 10.00 p.m. of 11.12.2001 he noticed that quarrel was going

on between the deceased and accused No. 1. The deceased was

quarreling with accused No. 1 as the deceased was feeling that

accused No. 1 was keeping relations with accused No. 2 and he

wanted to see that she remains away from accused No. 2. The first

informant tried to convince this couple not to quarrel. Along with

first informant, his two brothers Ankush and Manohar left their

respective houses for the field as the harvesting of the sugarcane

crop was to start. The first informant had requested the deceased

also to come to the field, but the deceased had refused to come to

the field. The youngest issue of the deceased was sent to the house

of mother in law of accused No. 1 by her and two other issues, sons

went to the field to help the first informant. Thus, after leaving of all

these persons for the field, there were only the deceased and

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accused No. 1 in the house of deceased and in the house of first

informant, his wife Anusayabai was there.

4) On the night between 11.12.2001 and 12.12.2001 after

mid night hours Anusayabai heard noise and she woke up from

sleep. She opened the door of the house and then she noticed that

the deceased was virtually tied on cot which was kept in the shed in

front of the constructed portion of the house of deceased and

accused Nos. 1 and 2 were strangulating him by pulling rope from

two sides. Anusayabai got frightened, she closed the doors and she

remained inside of the hose. Anusayabai waited till the morning and

after sunrise she rushed to the field to inform the incident to first

informant. The first informant and his brothers returned to home

and they visited the place of the deceased. After seeing the dead

body, they gave information to Police Patil of the village. In turn,

Police Patil gave report to Mukhed Police Station and on the basis of

report of Police Patil, A.D. came to be registered as A.D. No.

35/2001.

5) During inquiry of A.D. inquest report came to be

prepared in presence of panch witnesses and the dead body was

referred for post mortem ('P.M.' for short) examination to Mukhed

Government Hospital. Spot panchanama came to be prepared. The

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P.M. came to be conducted on 13.12.2001 between 9.00 a.m. and

10.45 a.m. The doctor, who conducted P.M. examination, gave

opinion that the death had taken place due to asphyxia due to

strangulation.

6) On 13.12.2001 police recorded report of Digambar, first

informant at about 2.15 p.m. On the basis of this report, the crime

at C.R. No. 145/2001 came to be registered in Mukhed Police Station

for aforesaid offence against appellants. During the course of

investigation, statement of Anusayabai came to be recorded and

statements of other brothers of deceased came to be recorded. The

statement of one neighbour of the deceased viz. Baliram Shrirame

also came to be recorded.

7) Both the accused persons came to be arrested. During

the course of investigation the accused persons gave separate

statements under section 27 of Evidence Act and on the basis of

those statements, two ropes came to be recovered. One rope was

used for strangulation and other rope was used for tying the

deceased on the cot. The viscera was sent to C.A. Office. But no

poison was detected. Chargesheet came to be filed for aforesaid

offences.

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8) The charge was framed for offence punishable under

section 302 r/w. 34 of IPC. Accused pleaded not guilty. The

prosecution examined in all nine witnesses. During the cross

examination of witnesses and the statements given under section

313 of Criminal Procedure Code ('Cr.P.C.' for short), accused took the

defence of total denial. However, accused No. 1 admitted that she

was living in the house with deceased where the incident took place.

No defence evidence is given. The Trial Court has believed the

prosecution witnesses who include Anusayabai (PW 5), Baliram (PW

2). Some circumstantial evidence is also given including on motive.

The points raised by the learned counsels of the appellants are being

discussed at proper places.

9) The tenor of the cross examination of all the prosecution

witnesses who were living in the vicinity shows that defence is not

disputing that on that night the sugarcane cutting was to be started

in the field of first informant. Anusayabai (PW 5) has given evidence

that she remained in the house and she had also noticed that

quarrel was going on between the deceased and accused No. 1. She

has deposed that she was sleeping with her child and in the night,

after short sleep, she woke up and she heard some noise of a man

like groaning (as ?kj?kj). She felt that the noise was coming from the

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tin shed of the deceased. This tin shed is not surrounded by walls or

any cover and so, the events from the tin shed are visible from

outside. She has deposed that Datta was sleeping on the cot and she

noticed that both his legs were tied to the cot by using string and

the two accused persons were pulling rope which was tied around

the neck of Datta from two ends and they were standing in opposite

direction. She has deposed that there was one electric bulb in the tin

shed and due to that she could witness the incident. It is not

disputed that she knew accused Nos. 2 also. She has deposed that

after some time, accused removed the string from the neck of the

deceased and that was done when the deceased had stopped

groaning. She has deposed that accused No. 2 then left the house by

using back door. She has described the clothes which the two

accused persons were wearing at the relevant time.

10) The evidence of Baliram (PW 2) needs to be considered

with the evidence of Anusayabai (PW 5). He also knows accused No.

2 and he had knowledge about the illicit relations which accused No.

1 was having with accused No. 2. He has given evidence that on that

day (11.12.2001) when he was doing agricultural operation like

sowing in his land at about 11.00 a.m. to 11.30 a.m. he had seen

accused Nos. 1 and 2 chit-chatting in the field of the deceased. He

has deposed that at about 3.00 p.m. on the same day when accused

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No. 1 came near his field, he asked her as to whether the deceased

had intention to sow the land or not. He has deposed that accused

No. 1 replied that the deceased was wandering here and there

without doing any work and she explained that she was requesting

accused No. 2 to give some money to her and he had assured to

give money on the next day. Thus, evidence is given on one meeting

which had taken place between accused Nos. 1 and 2 on 11.12.2001

by this witness.

11) Baliram (PW 2) has given evidence that ordinarily he

sleeps in front of the house. He has one shop which is run at the

residential place. He has deposed that in the night time when he

woke up to give fodder to bullocks, he heard some noise, of

groaning (?kj?kj) coming from the house of Datta. He has deposed

that first he tried to guess as to what was happening, then the noise

stopped. He has deposed that after some time, he saw accused No.

2 coming out of house of Datta from back door. He has described the

clothes which accused No. 2 was wearing at the relevant time. He

has deposed that in the street light he saw accused No. 2, but then

he went to bed. His evidence shows that only on the next morning

he came to know that Datta was dead.

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12) To ascertain as to whether Anusaya (PW 5) and Baliram

(PW 2) had the opportunity to hear something or to see something,

the spot panchanama needs to be seen. Sambhaji (PW 3) is

examined to prove the spot panchanama and there is also the

evidence of Vinayak More (PW 7), Police Head Constable who

prepared the spot panchanama. The tenor of cross examination of

these witnesses shows that the spot panchanama is not seriously

disputed and Sambhaji cannot be called as interested witness. It

needs to be kept in mind that the spot panchanama was prepared

during inquiry of A.D.No. 35/01 and not after registration of the

crime. Spot panchanama at Exh. 18 shows that Digamber was

present when the spot panchanama was prepared. The spot is

situated in the Osari portion of house of Datta and Osari portion was

covered by roof of tin sheets. After the shed, there was the door of

house of Datta. On eastern side of this house, there is wall of house

of Bajirao Vithalrao. On southern side of house of deceased, there is

the house of Baliram and there is wall in between two houses. On

northern side, there is the house of Ankush, brother of deceased.

The hand sketch map was prepared in spot panchanama and it

shows that beyond the house of Ankush, on northern side, there is

house of Digambar. The doors of the house of these brothers open

towards the open space situated on eastern side. The spot of

incident is shown in the open space situated in front of constructed

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house of deceased though it had roof of tin sheets. This open space

was not closed and so, the incidents taking place in the open space

can be seen from the open space situated in front of houses of

Digambar and Ankush. The public road is situated on the eastern

side where the properties of Bajirao and Baliram are situated. To the

house of deceased, there was back door and beyond that also, there

was one road. One can come to this road situated on eastern side

through the aforesaid open space situated in front of the houses of

these brothers. If anybody who leaves the house of Datta from

backside can also come from that side to the eastern road and if he

comes to that side, a person sleeping in front of the house of

Baliram can see him.

13) Inquest panchanama is admitted by defence and it is at

Exh. 39. It was prepared on 12.12.2001, but at that time the dead

body was kept in the Osari portion of house of Ankush. The inquest

panchanama shows that on both the sides of nostrils, there were

injuries like scratches, abrasions and the left portion of the nostril

has become blackish. There were blackish marks on left and right

side of the neck. There were abrasions on great toes of both the

legs.

14) Prosecution has examined Dr. Suryawanshi (PW 9) to

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give evidence on the P.M. examination. In her evidence, P.M. report

is proved as Exh. 37. Her evidence shows that she found following

injuries on the dead body which are mentioned in column No. 17 of

P.M. report :-

(i) 1 Cm breadth mark of ligature is seen all around the

neck at the level of below cricoid cartilage.

(ii) Abrasion about 2 cm in size present on Lt. great toe.

(iii) Abrasion about 2-3 cm in size on the Rt. great toe

present.

15) PW 9 has given evidence that the death took place due

to asphyxia due to strangulation. Her evidence shows that viscera

was sent to C.A. Office. But the C.A. report at Exh. 38 shows that no

poison was detected and so her opinion given before receipt of C.A.

report is confirmed. She has given evidence that injury No. 1

mentioned above can be caused due to the ligature material like

plastic string and the death took place due to injury No. 1. She has

given explanation as to why P.M. was conducted on 13.12.2001 even

when the dead body was reached to hospital on 6.15 p.m. of

12.12.2001.

16) Dr. Suryawanshi (PW 9) is cross examined to suggest

that the injuries mentioned by her can be caused when dead body or

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a person on death bed is shifted from one place to another. She has

denied this suggestion. It is suggested to her that she was not that

experienced to give definite opinion, but that suggestion is also

denied by her. The description of ligature mark given by this witness

and the substantive evidence is sufficient to prove that it is a case of

strangulation and not hanging. This evidence along with the

evidence of inquest report is sufficient to prove that Datta died

homicidal death.

17) The other evidence of prosecution like seizure of clothes

of two accused persons after their arrest or evidence given on

statements made by two accused under section 27 of Evidence Act

and discovery of two nylon ropes on the basis of statements need

not be discussed in detail. The article which was recovered as

ligature material was not shown to doctor. This material was not sent

to C.A. Office. The clothes were also not sent to C.A. Office. Thus,

the evidence with regard to the seizure of clothes of accused persons

can be used only to ascertain as to whether they had the clothes of

the description given by Anusayabai and not for any other purpose.

The seizure was made on 17.12.2001 and so, it can be said that the

clothes which are described by Anusayabai are recovered by the

investigating agency.

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18) The prosecution has given evidence on motive and that

can be seen from the evidence of Digambar (PW 1), Baliram (PW 2)

and Anusayabai (PW 5). Their evidence directly and indirectly

indicate that everybody knew that accused No. 1 had illicit relations

with accused No. 2 and due to that the deceased used to quarrel

with accused No.1. The tenor of cross examination of these

witnesses do not show that any probability is created that they are

lying.

19) The learned counsels for the appellants submitted that

aforesaid evidence cannot be believed due to circumstances like

lodging F.I.R. late and recording the police statements of the

witnesses late. It is true that F.I.R. came to be registered on

13.12.2001 at about 2.15 p.m. and the P.M. was conducted between

9.00 a.m. and 10.45 a.m. of 13.12.2001. Though on Exh. 37, P.M.

report, the time is mentioned as P.M. time, in the evidence doctor

has admitted that P.M. time is wrongly mentioned and it was

conducted between 9.00 a.m. and 10.45 a.m. Thus, it can be said

that the F.I.R. was given after giving opinion by doctor who

conducted the P.M. examination.

20) The learned counsels of appellants submitted that the

material on the record like spot panchanama, inquest panchanama

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and even the report which was given by Police Patil to Police Station

which is admitted document, Exh. 32 show that on 12.12.2001 there

was an opportunity to Digambar, Anusayabai and Baliram to disclose

the incident to police, but on that day, the incident was not disclosed

to police. It is true that Anusayabai has given evidence that early in

morning of 12.12.2001 she went to the field and she narrated the

incident to Digambar. Digambar had shown the spot of offence to

police, who prepared the spot panchanama during inquiry of A.D.

No. 35/01. The record shows that the Police Patil gave report on the

basis of information collected by him from accused No. 1 and it was

reported to police in Exh. 32 on 12.12.2001 and A.D. was registered

at 11.00 a.m. He had informed that accused No. 1 had disclosed that

on the morning of 12th, she noticed that her husband was dead and

she had informed that the deceased had probably consumed liquor

or other intoxicant like Shindi at the place of marriage. Thus,

indirectly she had informed that something had happened due to

liquor which the deceased had probably consumed in the marriage

function on 11.12.2001. Surprisingly, the Police Patil did not see the

dead body and only on the basis of information supplied by accused

No. 1, he gave report at Exh. 32.

21) The evidence of Police Head Constable More (PW 7)

shows that when he went to the village of deceased for recording the

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statements of witnesses, the brother of deceased wanted to give

information that it was murder and he had expressed to him about

that. He has deposed that due to the insistence of the witnesses, he

produced the brother of the deceased before the Superior Officer

and then F.I.R. came to be recorded and registered. It needs to be

kept in mind that in the past the things were taken very lightly and

the crime was not registered for offence of murder or even for any

other offences and due to that Police Head Constable had conducted

the inquiry into the A.D. This was continued even after giving of the

opinion by doctor, who conducted the P.M. examination. It can be

said that opinion was available after completion of P.M. i.e. after

10.45 a.m. of 13.12.2001. In ordinary course, after getting such

opinion, police officer himself could have given report about the

crime. It can be said that after getting the opinion of the doctor, the

investigating agency realized that some action was warranted and

then the F.I.R. given by the brother of the deceased was recorded.

All these circumstances cannot be ignored while considering the

challenge of defence against the evidence given by aforesaid

prosecution witnesses on the ground of delay caused in giving of the

F.I.R. and giving of the police statement late. It can be said that

after recording the F.I.R. Jadhav, Superior Officer (Dy.S.P.) took over

the investigation. He recorded the statements of the witnesses on

14.12.2001 when the F.I.R. came to be recorded on 13.12.2001.

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These circumstances have sufficiently explained the delay caused in

giving of the F.I.R. and also recording of the police statements of

other witnesses late. The persons from complainant side appear to

be very poor and earning livelihood by doing labour work and so,

they had to wait till the investigating agency had formed opinion that

it was a case where steps were warranted. Poor persons cannot

insist for anything and they are ordinarily taken lightly by

Government machinery including the police officers. It can be said

that the things like recording F.I.R. late happened due to the latches

on the part of the police officers. Due to aforesaid circumstances,

accused cannot be given benefit of these circumstances.

22) So far as the case of prosecution as against accused No.

1 is concerned, it is not disputed by her that she was living in the

same house and on that night also she was in the company of the

deceased. In ordinary course also, being a wife she was expected to

be in the company of the deceased in his house. There is clear

admission on that in statement given under section 313 of Cr.P.C. by

accused No. 1. The aforesaid evidence shows that the death took

place after taking meal and after 10.00 a.m. as per the versions of

the witnesses. In view of these circumstances and in view of the

provisions of sections 106 and 114 of Evidence Act, it was necessary

for accused No. 1 to offer explanation as to where she was at the

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relevant time and why she did not learn anything about the incident.

No such explanation is offered by accused No. 1. This Court has

already observed that she had passed false information to Police

Patil to create a probability that the death had taken place due to

poisonous liquor. This conduct of accused No. 1 also can be

considered against her. Further, there is the evidence on motive

against accused No. 1.

23) The circumstantial evidence already discussed shows

that Baliram (PW 2) had the opportunity to hear the noise if it was

coming from the house of deceased and he had the opportunity to

see the person who was coming from the house of deceased towards

the road situated on eastern side. Baliram (PW 2) is cross examined

to suggest to him that he has reason to falsely implicate accused No.

1 in the case. It is true that land admeasuring 10 Gunta was

purchased by Baliram from deceased. But he has denied that he had

not paid some consideration to Datta. It is suggested to him that

accused No. 1 was asking him to make the payment of remaining

amount and so, he has given false evidence against accused No. 1.

The cross examination of this witness shows that his evidence on

material point remained unshattered. There was virtually no reason

for him to give false evidence against accused No. 1 and 2. Close

relatives of the deceased have given evidence on illicit relations

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between accused Nos. 1 and 2 and it cannot be said that he had

only suspicion about such relationship. This Court sees no reason to

disbelieve this witness. Similarly, the evidence of Anusayabai (PW 5)

remained unshattered during extensive cross examination. The

circumstance that in the report given by Police Patil, there is no

whisper about the information which could have been passed by

Anusayabai is there, but the circumstances already discussed show

that Police Patil did not take the matter seriously and he believed

accused No. 1 on the information supplied by her. Only due to report

of Police Patil at Exh. 32, the aforesaid circumstances were created.

Atleast after preparing inquest panchanama, Exh. 39, the police

ought to have realized on 12.12.2001 itself that it was not death due

to poisoning and there was possibility of atleast hanging or

strangulation.

24) As there is the evidence of Baliram (PW 2) as against

accused No. 2 of aforesaid nature, he ought to have given some

explanation about his presence in the vicinity of the house of

deceased on that night. He has taken defence of only total denial.

The injuries which are already described show that murder was

committed by strangulation. The deceased was aged about 35 years

and his body was well nourished. Accused No. 1 was aged about 30

years at the relevant time. These circumstances show that it was the

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job of atleast two persons. Considering the age of accused No. 2 and

the motive for him for the offence, this Court holds that the evidence

as against him is sufficient to prove his involvement in the offence.

25) It appears that against the first informant, it was

submitted that they wanted to get rid of accused No. 1 for grabbing

the property of deceased and so, they have falsely implicated

accused No. 1. This submission has no force. Firstly, the deceased

was real brother of first informant and deceased has left behind two

sons and one daughter, aged about 14, 12 and 10 years respectively.

In ordinary course, the property will go to issues of deceased if

accused No. 1 is convicted. Further, for getting rid of accused No.1,

it was not necessary to implicate accused No. 2 in the matter and

unless there was something, they would not have taken the name of

accused No. 2. In the cross examination, the defence itself has

brought on the record that the relations between these two families

were strained. Thus, there was no reason for first informant or his

wife and for that matter even for Baliram to give false evidence as

against accused No. 2. The Trial Court has appreciated the oral

evidence of these witnesses and as Appellate Court, this Court sees

no reason for not maintaining the decision of the Trial Court which

has base of oral evidence. This Court holds that the aforesaid

evidence is sufficient to prove that accused Nos. 1 and 2 in

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furtherance of their common intention committed the murder of

Datta by strangulation on the night between 11th and 12th of

December 2001. The Trial Court has given minimum penalty for the

offence. Thus, there is no possibility of interference in the decision

given by the Trial Court. In the result, both the appeals stand

dismissed. Both the appellants to surrender to bail bonds for

undergoing sentence.

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



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