Bombay High Court
Angad Gundaji Suryawanshi & Ors vs State Of Maha on 11 January, 2018
Bench: T.V. Nalawade
1 Appeals 373 & 434 of 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 373 of 2003
Balaji s/o Angad Suryawanshi
Age 30 years,
Occupation: Labour,
R/o Kalmugali, Taluka Nilanga,
District Latur. .. Appellant.
Versus
The State of Maharashtra. .. Respondent.
----
Shri. Paresh B. Patil, Advocate, for appellant.
Shri. V.S. Badakh, Additional Public Prosecutor, for
respondent.
----
With
Criminal Appeal No. 434 of 2003
1) Angad s/o Gundaji Suryawanshi
Age 65 years,
Occupation: Labour,
R/o Kalmugali, Taluka Nilanga,
District Latur.
2) Rasikabai w/o Angad Suryawanshi,
Age 60 years,
Occupation: Household,
R/o Kalmugali, Taluka Nilanga,
District Latur. .. Appellants.
::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 02:19:30 :::
2 Appeals 373 & 434 of 2003
Versus
* The State of Maharashtra. .. Respondent.
----
Shri. Paresh B. Patil, Advocate, for appellants.
Shri. V.S. Badakh, Additional Public Prosecutor, for
respondent.
----
Coram: T.V. NALAWADE &
S.M. GAVHANE, JJ.
Judgment reserved on : 18 December 2017
Judgment pronounced on : 11 January 2018
JUDGMENT (Per T.V. Nalawade, J.)
1) Both the appeals are filed against the judgment
and order of Sessions Case No.2/2003 which was pending
in the Court of the learned Additional Sessions Judge,
Nilanga, District Latur. The appellants from both the
appeals are convicted for the offence punishable under
section 498-A read with 34 of Indian Penal Code and the
appellant from Criminal Appeal No.373/2013 is convicted
for the offence punishable under section 302 of Indian
Penal Code. Both the sides are heard.
3 Appeals 373 & 434 of 2003
2) In short, the facts leading to the institution of
the appeals can be stated as follows :-
3) Deceased Gendabai was daughter of first
informant, Dattu Kamble. Dattu was resident of village
Yelnoor, Tahsil Nilanga. Gendabai was given in marriage
to the appellant of Criminal Appeal No.373/2003 and the
appellants are residents of Kalmugali, Tahsil Nilanga,
District Latur. The marriage had taken place about 6 years
prior to the date of the incident. Allegations are made
that at the time of settlement of the marriage the first
informant had agreed to give Rs.15000 as dowry and gold
ornament of 5 grams but the first informant could not give
the gold ornament of 5 grams in the marriage. The
marriage expenses were borne by the side of the husband.
4) It is the case of the prosecution that for about
six months there was no ill-treatment to the deceased but
after six months ill-treatment was started to the deceased
by her husband and parents of the husband on the ground
that the gold ornament of 5 grams was not given as per
agreement by the first informant. The appellants from
4 Appeals 373 & 434 of 2003
proceeding No.434/2003 are the parents of the husband.
It is contended that the deceased used to disclose that the
accused used to harass her and they used to give beating
to her. One daughter was then born to the deceased and
more ill-treatment was given after the birth of the
daughter. It is the contention of the prosecution that the
demand of gold ornament of 5 grams was met with but
after that new demand of Rs.5000 was made by the
accused persons by saying that they were indebted. After
that one son was born to the deceased and the birth of the
son took place about one and half years prior to the date
of the incident.
5) It is the case of the prosecution that the ill-
treatment was continued to the deceased by accused as
the demand of Rs.5000 was not met with. It is contended
that on the occasion of Gudi Padwa of the year in which
the incident took place the deceased was left at the house
of her parents by the accused and warning was given that
unless and until the demand of Rs.5000 was met with, he
would not take back the deceased to the matrimonial
house. However, after two months the deceased was taken
5 Appeals 373 & 434 of 2003
back to the matrimonial house by the maternal aunt of the
husband and undertaking was given that they will not give
ill-treatment to the deceased. It is the contention that
even after giving of such undertaking, ill-treatment was
given to the deceased by the husband and his parents.
6) The incident took place on 21-8-2002 in the
field of the accused situated at Kalmugali. Adjacent to this
land, there is land of one Sunil Warwate. On the day of the
incident work of spreading fertilizer was going in the field
of Sunil. There was standing crop of hybrid in the field of
the accused. Sunil and the persons working in his field
had seen the deceased in the field of the accused with two
kids. At about 2.00 p.m. of that day the persons working
in the field of Sunil had invited the deceased to have lunch
with them but she had said that she had already taken
lunch. The place where these persons were taking lunch
is situated near the common bandh of the two lands and
the deceased was sitting in the vicinity of the place where
Sunil and the persons working with him were taking
lunch. After some time the accused husband and the
deceased entered the hybrid crop and the kids were with
6 Appeals 373 & 434 of 2003
them.
7) After some time, the persons from the field of
Sunil heard calls given by the husband from hybrid crop
and so they rushed to the hybrid crop of the accused. They
noticed that the deceased was lying in unconscious
condition in the hybrid crop. On inquiry the husband
disclosed that on that day the deceased had quarrel with
his mother and so he questioned the deceased, when he
was questioning the deceased, the deceased gave
arrogant replies and due to that he became angry. He
disclosed to them that out of anger he held the legs of the
deceased and he virtually threw the deceased away and
due to that the deceased fell on her neck and due to that
she was lying on the ground.
8) Sunil and the persons working with him helped
the accused to shift the deceased to road where a jeep
was called and in the jeep the deceased and her husband
were sent to hospital. The husband then took the
deceased to Aurad Sahajani hospital where the doctor
advised to take her to Nilanga Government hospital. The
7 Appeals 373 & 434 of 2003
accused took the deceased to Nilanga Government
Hospital where the doctor from Nilanga hospital declared
that Gendabai was already dead.
9) On 21-8-2002 itself father of the deceased
learnt that the dead body of Gendabai was kept in Nilanga
Government Hospital. He went to the hospital. He gave
report to police on 22-8-2002. Prior to that, A.D. was
registered and during A.D. inquiry, inquest panchanama of
the dead body was done and the dead body was referred
for post mortem. On the basis of the report given by the
father of the deceased, the crime for aforesaid offences
came to be registered in Nilanga Police Station.
10) The doctor, who conducted the post mortem
examination, gave opinion that the death took place due to
neurogenic shock due to fracture of second cerebral
vertebra. During investigation, statements of the relatives
of the deceased on parents side came to be recorded and
the statements of Sunil and the persons working with him
in his field came to be recorded. After completion of
investigation, charge-sheet came to be filed for the
8 Appeals 373 & 434 of 2003
aforesaid offences. All the accused pleaded not guilty. The
prosecution examined in all 12 witnesses. The accused
took defence of total denial. The accused examined three
witnesses in defence. The trial Court has given conviction
as the trial Court found that burden was on the accused to
explain the things and he had failed to explain as to how
his wife had sustained the aforesaid injury. The trial Court
has held that it is a case of homicide.
11) To ascertain as to whether Gendabai died
homicidal death, the evidence of the medical officer who
conducted the post mortem examination needs to be
considered first. Dr. Vijaykumar Nimbalkar (PW-12) is
examined to prove that it is homicide. He conducted the
post mortem examination on the dead body on 22-8-2002.
He found one contusion over backside of the neck of the
size of 3 cm x 2 cm and this contusion was present on
either side of neck. It was at the level of ear and there was
lax movement of neck. On exploration of neck it revealed
that there was fracture of second cervical vertebra. The
doctor gave opinion that the death took place due to
neurogenic shock due to fracture of second cervical
9 Appeals 373 & 434 of 2003
vertebra. He has given opinion that such injury can be
caused by hitting of hard and blunt object on the neck. He
has specifically stated in the evidence that such injury
cannot be sustained if person falls when he is walking.
Considering the site of the injury, this Court holds that the
opinion given by the doctor about the possibility of cause
of injury due to hitting of hard and blunt object needs to
be accepted. The post mortem report is proved in his
evidence as Exhibit 44 and the advance opinion given by
him is proved at Exhibit 43. In the cross-examination, the
doctor has deposed that such patient cannot survive even
after giving the treatment and the patient may die
immediately after sustaining of such injury. He has denied
that if a person falls on neck such injury can be caused.
This expert evidence of the doctor is accepted by the trial
Court. So the opinion of the expert given under section 45
of the Evidence Act has become the opinion of the Court.
This Court sees no reason to interfere in that opinion. This
Court has no hesitation to hold that Gendabai died
homicidal death.
10 Appeals 373 & 434 of 2003
12) The accused gave statement in writing when
his statement was recorded under section 313 of the
Cr.P.C. He took the defence that when he entered the field
he noticed that Gendabai was already lying in the field
and then with the help of persons like Sunil he shifted
Gendabai towards the road and from there he was taking
Gendabai on motor cycle. He contended that after
crossing some distance, he saw one jeep and when he
started towards the jeep, Gendabai fell on the neck. Thus
the accused has tried to give explanation in respect of the
injury sustained by Gendabai and this explanation is not
acceptable in view of the opinion given by the doctor and
also due to the site of the body where the injury was
sustained. It can be said that the witnesses like Sunil and
the persons working with him have not wholeheartedly
supported the prosecution but whatever evidence they
have given and the aforesaid statement of the accused are
sufficient to show that the accused was present with the
deceased at the relevant time in the field and only the
accused had the opportunity to inflict such injury.
11 Appeals 373 & 434 of 2003
13) Sunil (PW-5) is the owner of the adjacent field
and he has given evidence that first he and his men had
seen Gendabai in the field with the two kids and they had
even invited Gendabai to have lunch. He has given
evidence that after some time the accused came to the
field and he was also invited by them for lunch but he
refused by saying that he had taken lunch. He has given
evidence that the accused then gave call to him and due to
that he and his men went to the field of the accused. He
has given evidence that after entering hybrid crop of the
accused they noticed that Gendabai was lying there and
she was making movements of receiving shocks and fits.
He has given evidence that the accused requested them to
help him to shift Gendabai to hospital. At this point, the
learned A.P.P. took permission of the trial Court to cross
examine Sunil and further evidence was recorded as the
evidence brought in the cross-examination.
14) Sunil (PW-5) has admitted that after the
incident, police had made inquiry with him and his
statement was recorded. The portions from his police
statement which are denied by Sunil were confronted to
12 Appeals 373 & 434 of 2003
him and they were marked as "A" and "B". These portions
are duly proved in the evidence of the investigating officer
(PW-11). It can be said that, this witness has avoided to
give evidence on the extra judicial confession given by the
accused and also on some circumstances like Gendabai
was found unconscious in the standing crop of hybrid.
Whether the deceased was really unconscious or not
could not have been inferred on the basis of the evidence
given by Sunil but there is the opinion given by the doctor.
Further, the opinion needs to be kept in mind as the
accused has tried to take a defence that when he was
shifting Gendabai from motor cycle she had a fall. There
was no such statement of PW-5 before police. Before
police he had given statement that from the road
Gendabai was shifted in a jeep for taking her towards
hospital.
15) Prosecution has examined Sudhakar Warwate
(PW-6). He was also working in the field of Sunil (PW-5) at
the relevant time. He was cross-examined by the APP for
the State. His evidence also shows that they had seen
Gendabai live in her field and she was sitting near the
13 Appeals 373 & 434 of 2003
hybrid crop and after some time they had seen that Balaji
had come there. Thus when this witness had seen
Gendabai and Balaji together, Gendabai was alive. The
other part of the evidence is similar to the evidence given
by Sunil (PW-5). Relevant portions from the police
statement of this witness were confronted to him by the
APP and they were marked as "A" and "B". There is similar
evidence of Venkat (PW 7) who was working in the field of
Sunil at the relevant time. He also turned hostile. There is
evidence of Suresh Suryawanshi (PW-8) who was also
working in the field of Sunil on that day. He also turned
hostile. Similar evidence is given by him and the relevant
portions from his police statements were confronted to
him and they were marked as "A" and "B". In the evidence
of Phulchand Rathod (PW-11), the investigating officer
those portions of the aforesaid witnesses are duly proved
and they are exhibited. It can be said that the aforesaid
witnesses tried to help the husband of the deceased by
hiding the truth but whatever evidence is given by them is
sufficient to prove that they had seen both Gendabai and
her husband together and they had entered the hybrid
crop in the presence of these witnesses. Thus, Gendabai
14 Appeals 373 & 434 of 2003
was seen lastly in the company of the husband alive.
Within few minutes of the incident of last seen these
witnesses saw Gendabai lying in the field of the accused.
Due to these circumstances, the burden was on the
husband to explain the things.
16) The medical evidence already discussed shows
that there was only one blow given on the neck. If
Gendabai was suffering from fits and she was lying in the
hybrid crop, other injuries like bruises, abrasions would
have been noticed on her body. If she had a fall then also
some other injuries could have been noticed on the dead
body. This did not happen.
17) Defence witnesses like Shesherao (DW-1), Ram
(DW-2) and Sachin Awale (DW-3) are examined by the
accused in his defence. DW-1 and DW-2 have given
evidence that on that day they were working in the field of
Sunil (PW-5). Their evidence is similar to the evidence of
witnesses examined by the prosecution. Their evidence
also shows that they had seen Gendabai alive when the
accused had entered his field. DW-1 and DW-2 have tried
15 Appeals 373 & 434 of 2003
to say that they had helped the husband to take Gendabai
on motor cycle. If Gendabai was unconscious it was
necessary for the accused to explain as to how he had
taken Gendabai on motor cycle when he was riding the
motor cycle. If there was third person on motor cycle to
hold Gendabai, it was necessary for the accused to
examine that person. In absence of such evidence, not
much weight can be given to the evidence of DW 1 and
DW 2. The third witness Sachin Awale (DW-3) has tried to
say that he was called to Aurad Sahajani with jeep by the
accused and from there he had shifted Gendabai in his
jeep to the hospital from Nilanga. This evidence is not
consistent with the written statement filed under section
313 of the Cr.P.C. by the accused. In the statement he has
contended that the jeep was available at the square in his
village and from there he had taken Gendabai to the
hospital from Aurad Sahajani. Thus there is clear falsity
in the evidence of DW-3. In any case this defence of the
accused is not acceptable for the reasons already given by
this Court.
16 Appeals 373 & 434 of 2003
18) The aforesaid evidence if considered together
leads to only one inference that one blow was given on the
neck of the deceased from back side in the field of the
accused and only the accused, husband of the deceased,
had opportunity to inflict such injury. Gendabai was not in
a position to speak or most probably she died after some
time when she was shifted to Aurad Sahajani hospital. In
the evidence of the investigating officer it is brought on
record that the investigation revealed that some treatment
was given to Gendabai in Aurad Sahajani hospital. This
circumstance cannot help the accused as the injury was
inflicted and it could not have been sustained in
accidental fall. The accused could have produced some
record from Aurad Sahajani hospital to show that the
deceased was suffering from fits and for that the
treatment was given to her. But no such attempt was
made by the accused. As already observed, burden was on
the accused to show that he was not the author of the
injury. Provisions of sections 106 and 114 of the Evidence
Act are applicable in this case and the accused has failed
to give plausible explanation.
17 Appeals 373 & 434 of 2003
19) The question arises as to what offence the
accused has committed. Only one injury was found on the
person of the deceased. The police statements of the
witnesses were confronted to them by the learned APP
and those portions are proved in the evidence of PW 11.
That is not the substantive evidence but the initial case of
the prosecution needs to be kept in mind for ascertaining
the offence committed by the accused. Such case also
creates a probability. As per the medical evidence only one
blow was given on the backside of the neck of the
deceased and that proved to be fatal. However, in such a
case it can be said that there are always two probabilities.
There was either the intention of the accused to inflict
such blow or to finish the deceased or there was
knowledge of the accused that by such act he was likely to
cause the death. As per the principles of criminal law the
probability which is in favour of the accused needs to be
considered and accepted by the Courts. Further, the
subsequent conduct of the accused also needs to be
considered in view of section 8 of Evidence Act. He called
the neighbours and he made attempt to save the life of
Gendabai by shifting her to the hospital. PW-11 has stated
18 Appeals 373 & 434 of 2003
that during his investigation it reveled that Gendabai was
alive when she was shifted to Aurad Sahajani hospital.
These circumstances cannot be ignored and these
circumstances create probability that the accused had no
intention to finish the deceased. Due to these
circumstances this Court holds that the accused
committed the offence punishable under section 304 Part
II of the Indian Penal Code. To that extent, the decision of
the trial Court needs to be modified.
20) The prosecution has examined father of the
deceased, Dattu (PW-1), Bharat (PW-4), Kondiba (PW-9)
and Nagendra (PW-10) to give evidence on the ill-
treatment given by the accused to Gendabai. There was
cohabitation of 6 years and Gendabai gave birth to two
issues from accused Balaji. It does not look probable that
for 5 gram gold ornament ill-treatment was given for
many years and after that new demand of Rs.5000 was
made by accused from the parents and on that ground ill-
treatment was given to the deceased. Evidence of the
father of the deceased shows that the financial condition
of the accused was good and only after making necessary
19 Appeals 373 & 434 of 2003
inquiry with close relatives he had given Gendabai in
marriage to accused Balaji. He had not approached
mediators in the past to convince the accused to behave
well if there was such ill-treatment to the deceased.
There is nothing on the record to show that the accused
was indebted. The evidence on the demand of Rs.5000 is
very vague and it can be said that the so called demand
was very old if the approximate time given by the father
of the deceased in his evidence is considered. There is no
independent witness on this demand or on ill-treatment.
Though the accused has caused the death of Gendabai,
there is clear possibility that the incident took place out of
a quarrel and anger on that day and so it cannot be said
that so called ill-treatment had connection with the cause
of death. Thus, the evidence on so called disclosures of
the deceased is not available under section 32 of Evidence
Act. For these reasons this Court holds that the evidence
on ill-treatment is not sufficient and not convincing in
nature. Thus, the conviction given to the parents of the
husband and also to the husband for the offence
punishable under section 498-A read with 34 IPC needs to
be set aside.
20 Appeals 373 & 434 of 2003
21) The learned counsel for the accused has placed
reliance on following reported cases :
(1) 2006 MCR 713 - (Sunil Ram Sapkal v. State of
Maharashtra);
(2) (2005)9 SCC 237 (State of A.P. v. Patnam Anandam);
(3) 2000(1) Mh.L.J. 549 (Dilip Ramaji vs. State of
Maharashtra.
Facts and circumstances of each and every criminal case
are always different. One case is on the effect of delay
caused in giving FIR. In the present matter, the delay
could have been considered only in respect of offence
punishable under section 498-A of IPC. For the offence of
culpable homicide not amounting to murder this delay
cannot be used in favour of the husband. In the result,
following order.
22) Criminal Appeal No.434/2003 is allowed.
Criminal Appeal No.373/2003 is partly allowed. The
judgment and order of the trial Court convicting all the
accused for offence punishable under section 498-A read
with 34 of the Indian Penal Code is hereby set aside. All
the accused stand acquitted of the offence punishable
under section 498-A read with 34 of Indian Penal Code.
21 Appeals 373 & 434 of 2003
The judgment and order of the trial Court convicting
the accused - Balaji, husband of the deceased for offence
punishable under section 302 of the Indian Penal Code is
hereby set aside. However, this accused stands convicted
for offence punishable under section 304-II of the Indian
Penal Code and is sentenced to suffer rigorous
imprisonment for 5 years and to pay a fine of Rs.1000/-. In
default of payment of fine, he is to undergo rigorous
imprisonment for two months. The accused is entitled to
set off in respect of the period for which he was behind
the bars as under trial prisoner. The accused Balaji to
surrender to his bail bonds for undergoing the sentence.
The bail bonds of other accused stand cancelled.
Sd/- Sd/-
(S.M. GAVHANE, J.) (T.V. NALAWADE, J.)
rsl
