State Of Maharashtra vs Vasant Bhagwan Avale
2018 Latest Caselaw 320 Bom

                                     {1}                         criapel116-03

 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 116 OF 2003

 The State of Maharashtra                                       APPELLANT
 Through Police Station Officer,
 Police Station, Patoda,
 Taluka - Patoda, District - Beed

          VERSUS

 Vasant Bhagwan Avale                                       RESPONDENT
 Age - 38 years, Occ - Agriculture
 R/o Kumbhephal, Taluka - Paranda
 District - Osmanabad

                                 .......

Mr. S. J. Salgare, APP for appellant - State Mr. Ajinkya Kale h/f Mr. S. B. Talekar, Advocate for respondent .......

[CORAM : SUNIL P. DESHMUKH & P. R. BORA, J.J.]

DATE : 11th JANUARY, 2018

ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.) :

1. This is an appeal preferred by the State challenging

judgment and order dated 21st October, 2002 passed by

First Ad-hoc Additional Sessions Judge, Beed, in Sessions Case

No. 94 of 2001, thereunder acquitting the respondent - accused.

2. First Information Report was lodged by Chandrakant

Raosaheb Kolhe (PW-8), Police Head Constable, Police Station,

Patoda on 20th March, 2001 informing that on 19 th March, 2001

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Shamrao Baburao Shekte, Police Patil, Pachangri had intimated

that two agriculturists, namely, Manik Vishwanath Katwate and

Tukaram Tatyaba Chavan had been to him around 10.00 a.m.

informing that in a well in a field known as Bori, corpse of

unknown woman had been seen. On verification it had been seen

that corpse of unknown woman aged about 35 years had been

lying in the well water in prostrate condition. Thereupon, action

had been solicited and police station officer, Assistant Sub

Inspector Namdas had registered Accidental Death No. 9 of 2001

pursuant to section 174 of the Criminal Procedure Code and had

directed investigation. Accordingly, along with constable Dongare

and Police Patil, spot of incident had been visited and dead body

had been taken out of the well with the help of Police Patil,

Manohar Rajaram Mundhe, Manik Vishwanath Katwate, Navnath

Devrao Sonawane and others. Police Patil Shamrao Shekte had

then informed that on 17th March, 2001 around 1.30 p.m. a

person was beating a woman at Manjuri square of Pachangri and

on asking he had told his name as Vasant Bhagwan Avale,

resident of Kumbhephal, Taluka-Paranda, District - Osmanabad

and had told that the woman was his wife Palanka. The woman

had complained that the man did not allow her to go to her

parents at Malewadi and beats her. Then, the man - her husband

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had told that he wants to go to Daskhed to see Bajibaba.

Thereafter, both of them were sent to Daskhed in the tractor of

Subhash Rajendra Mundhe. He had recognized that the dead

body was of said woman. Thereafter police constable Dongare

had been directed to bring parents of the woman from Malewadi

(Bharnyachi), Taluka and District - Beed. Accordingly, the police

constable had brought them on the spot of incident. Upon seeing

they recognized that the dead body was of their daughter

Palanka, wife of Vasant Avale, aged 32 years, resident of

Kumphephal. Thereafter inquest panchanama was drawn in their

presence and the body was sent for post mortem to government

hospital, Patoda, around 9 p.m. and had been kept in mortuary

on 20th March, 2001 around 5.00 p.m. Medical Officers, M. K.

Kakad and N. V. Yeole had carried out the post mortem and had

issued provisional certificate referring to that the person had

been killed by strangulating and throwing in water. As such,

offence at Crime No. 33 of 2001 came to be registered, with

Patoda Police Station against Vasant Bhagwan Avale accusing

him of killing his wife Palanka by strangulating and throwing her

in the well in field Bori and trying to destroy evidence, between

the period from 1.30 p.m. of 17th March, 2001 to 10.00 a.m. on

19th March, 2001, for the offences punishable under sections 302

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and 201 of the Indian Penal Code.

3. Prosecution has examined in all 15 witnesses. PW-1

Navnath Deorao Sonawane and PW-2 Manohar Rajaram Mundhe

who had been examined at Exhibit-10 and Exhibit-12

respectively are the Panch witnesses in respect of scene of

offence.

4. PW-3 Shamrao Bapurao Shekte, who had been examined

at Exhibit-13 is Police Patil of village Pachangri. He has stated in

his deposition that on being informed by Manik Katwate and

Tukaram Chavan of Bodkhewadi, he had been to the well in their

field and had seen dead body floating in the well and had

thereafter proceeded to police station Patoda along with said two

persons informing the police about the same under his report

dated 19th March, 2001. Thereupon, police constables Mr. Kolhe

and Mr. Dongre had accompanied him to the field and had

caused dead body to be removed out of the well and inquest

panchanama had been drawn and the dead body was sent for

post mortem.

5. PW-3 Shamrao has further stated that on 19 th March, 2001

around 1.30 p.m. while he had been standing near Manzari

corner, he had seen the woman and the accused, who were

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quarreling and that time Shahaji Oval and Vishvanath Mundhe

among others were present there. The couple was asked by him

as to why they were quarreling and from where they had come.

The man had told him that he is Vasant Avale and further that

the woman was his wife. The woman had told him that she is

Palanka. She was also asked about her parents and the

residence and she had told him that her parents are from

Bharnyachi Malewadi. Her father's name being Manik Barane. He

had noted down their names. The woman had told him that the

accused had not been allowing her to go to her parental house

and that he beats her. They were taken to a proximate hotel and

water had been offered to them. Having told by accused that he

wanted to go to Daskhed along with wife to visit Bajibaba, they

were sent to Daskhed in a tractor belonging to a person from his

village.

6. In cross examination of PW-3 Shamrao, however, an

omission had emerged about noting down of names of the two

persons. It has further been elicited that the police Patil has to

maintain a daily diary and that in the daily diary, names of said

two persons had not been taken. Extract of diary of third month

of 2001 had been submitted to the police, which does not

contain reference to notings which had been at Exhibit-15.

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7. PW-4 Subhash Rajendra Mundhe has been examined at

Exhibit-20. He is stated to be driver of the tractor and claims to

have taken the accused and deceased in his tractor. He refers to

in his deposition that Palanka had been wearing a yellow colour

saree on her person while she travelled in the tractor. He also

refers to that Police Patil had asked him to drop the couple at

Daskhed and that he had dropped them at Malewadi corner, 1

k.m. before Daskhed and that there was one more person in the

tractor. In cross examination of PW-4 Subhash it has been

elicited that he had no talks with the persons and he was not in

a position to state about passengers, who had travelled in his

tractor / trolly on earlier two days and subsequent two days after

17th March, 2001 and that he cannot state who were the persons

who had travelled in the trolly on 17 th, other than the man and

the woman and one more person.

8. PW-5 Manik Baburao Barne, father of deceased Palanka

has been examined at Exhibit-21. He, in his deposition, refers to

that marriage of deceased Palanka and the accused had taken

place about 15 years before the incident. She had been to him

two months before the incident telling that the accused had been

demanding Rs.15,000/- for laying down pipeline in his field. He

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further refers to that around 4.30 p.m. police had been to him

telling that a girl from Malewadi had fallen into well at

Bodkhewadi and then he had arrived at the scene and identified

dead body as that of Palanka and inquest panchanama was

drawn and the dead body was taken to police station for sending

it to post mortem and thereafter had informed about death of

Palanka to his wife. While they were at Patoda, they came to

know that Palanka having been strangulated to death. In his

cross examination it has come forth that him, his wife Lochanbai,

son Vinayak and two others were prosecuted in the court at

Paranda in 1994 by the accused. It had been alleged that they

were not allowing Palanka to stay with the accused and that they

used to beat him. PW-5 was examined on the third day after the

incident.

9. Lochanbai, mother of deceased is PW-6 who had been

examined at Exhibit-22. She purportedly has referred to in her

cross examination that accused has been looking after his sons

from Palanka and that they have not done anything for the sons

of Palanka and further that there is enmity between the accused

and them, since he had initiated prosecution against them.

10. PW-8 Police Head Constable Chandrakant Raosaheb Kolhe

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is the investigating officer who had been examined at Exhibit-25.

He has stated that upon being informed by Police Patil about

quarrel having taken place between husband and wife at Manzari

Corner that the dead body was of that woman, he had sent

police constable Dongare to Malewadi to her parents and that

her father had come with the police within an hour and father of

the deceased had identified her body and inquest panchana,

scene of offence panchanama had been prepared. Thereafter

dead body was sent to medical officer Patoda for post mortem,

which had been carried out on 20 th March, 2001 stating further

that Police Patil had produced a small piece of paper, Exhibit-15.

11. PW-9 Dr. Narayan Vasudeorao Yeole is medical officer,

Primary Health Center, Dongarkinhi, Taluka - Patoda, who had

been examined at Exhibit-27. He has stated that he had been

working on deputation on 20th March, 2001 at Primary Health

Center, Patoda. He had opined that the probable cause of death

was cardio respiratory failure due to asphyxia, secondary to

strangulation. PW-9 in his cross examination has stated that

asphyxia is also there in case of drowning as well as failure of

the heart i.e. cardio respiratory failure. He also in his cross

examination states that strangulation can be detected by

external injuries and that there must be internal injuries

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corresponding to external injuries and had also stated that there

was no internal injuries to the tissues of the deceased and had

also referred to that injuries in column No.17 of the post mortem

report were superficial.

12. PW-10 Pandurang Baburao Mundhe, who runs a hotel near

Manzari corner, has been examined at Exhibit-30. He states that

Iswar Mundhe, Shahaji Waval and Shekte Patil were in his hotel

while the accused had been beating the deceased, who was

trying to run away. In the cross examination an omission has

been elicited about accused and his wife having been brought in

hotel and were offered tea and water and that he had dithered

over the identity of the dead body and the woman he had seen.

13. PW-11 Vishvanath Shridhar Mundhe had been examined

at Exhibit-31. He refers to in his deposition that he had been in

the hotel of Pandurang while Bandu (PW4), Pandurang and

Shekte Patil i.e. PW-3 were present. He had been declared

hostile.

14. PW-12 Ramesh Vasant Avale who has been examined at

Exhibit-32 is a child witness - elder son of the accused and the

deceased. He has stated that his father had told him about

mother being at Daskhed while he had come back alone. He

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states that his mother was lunatic and people were afraid of her

and that sometimes she never used to come home. Manik Barne,

his maternal grand father, did not use to come to them. He has

further stated that his mother used to go to Daskhed on full dark

night every month and that his maternal grand father used to

come to Wadvad on full dark night every month and that at the

time of incident grand father Manik had taken his mother to

Daskhed.

15. PW-13, Umesh Vasant Avale, who has been examined at

Exhibit-33 is also a child witness and younger son of the accused

and the deceased. He has deposed to the effect that his mother

- deceased had been lunatic and father had not treated her

badly. While he had been declared hostile, prosecution in cross

examination could not bring any variation in his statements. He

too, in his cross examination by the defence has stated that his

grand father used to come to take their mother to Daskhed and

that before the incident had taken place, Manik had taken their

mother to Daskhed. This witness appears to have narrated to the

police that on 17th March, 2001 him and his parents had been to

Wadvad by bullock cart where his parents got down and he had

returned home and on 19th March, 2001, father alone had

returned telling that mother had been at Malewadi and thereafter

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while the police had been to their house, he became aware about

death of his mother.

16. PW-14 is Sudam Baburao Kotule, who has been examined

at Exhibit-38/C. He is neighbourer of the accused. He had been

declared hostile and had been cross examined by the

prosecution.

17. PW-15 is Dinkar Bhima Gaidhane, he has been examined

at Exhibit-39/C. He had been Police Inspector, Beed City Police

Station. It has been elicited from his cross examination that

investigation in respect of Palanka's visit to Daskhed had been

made recording statement of Vijay Kolhe, a priest of Daskhed.

However, same had not been submitted along with charge sheet

and had not recorded statement of the third person who had

been sitting in the tractor along with the accused and the

deceased.

18. Learned APP contends that evidence pointedly makes it

clear that deceased had been last seen by quite a few persons in

the company of the accused husband. Further, the conduct of the

accused is also material, since he did not appear to have

enquired about whereabouts of his wife from 17 th March, 2001

till first information report had been lodged. No plausible

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explanation is coming forth for his omission to enquire about his

wife during this period. Medical report establishes that wife of

the accused has died of strangulation and in the light of such

evidence, acquittal by the trial court is not proper. He submits

that the circumstantial evidence is sufficient to lead to definitive

conclusion about unnatural death having been caused and the

cause in the absence of plausible explanation coming from the

accused, is an unequivocal pointer to the accused alone. He

submits that may be there is no eye witness, but the

circumstances in the absence of explanation from the accused

ought to have been properly considered by the trial court

coupled with surrounding circumstantial evidence in which every

link in the chain has been established.

19. On the other had learned advocate appearing for the

respondent - accused Mr. Ajinkya Kale vehemently submits that

while a person is being accused of heinous offence like murder of

wife, the law requires that evidence against accused has to be

established absolutely and the standard of measure is beyond

reasonable doubt. He submits that even otherwise it has come

on record that the accused and the deceased had been married

for over 15 years and had begotten two children who were

taking education. He further submits that as a matter of fact it is

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the case other way round. It has emerged on record that the

accused had to complain against parents of deceased for not

letting him have her company after marriage. He submits that

the evidence by parents of the deceased is absolutely unreliable,

purporting to cook up the theory of demand of money for laying

down pipeline in the filed, fifteen year after marriage, that too

after death of their daughter. He submits that the parents of the

deceased have once again stooped too low against the accused.

He submits, it appears that the parents of the deceased had

been entertaining a kind of grudge against the accused - their

son in law. He submits that the evidence does establish that

even if it is assumed that the deceased had been lunatic and the

accused had not been maintaining her properly, yet, it emerges

on record that he had been maintaining his children well, letting

them educate and further that parents of the deceased were not

at all taking any care of the children or their daughter, nor were

concerned in any way with them. On the contrary, he submits

that the evidence to quite a large extent is indicative of that it is

the father of the deceased, who used to take Palanka his

daughter to Daskhed on every new moon night for treatment

and that even before the incident he had taken Palanka along to

Daskhed. He submits that the evidence of the persons, who

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purport to have seen the accused and the deceased on 17 th

March, 2001 at Manzari corner, is absolutely unreliable, for it

emerges on record that proper transport facilities were not

available and the distance was of only one or two kilometer from

there. The evidence further shows that it was her father, who

used to take her to Daskhed and only on the day of the incident

her husband was taking her to Daskhed is unreliable version put

forth on behalf of the prosecution. He further submits that last

person who had seen the couple, who contends to have left them

at Malewadi corner had also stated that there was a third person

along with the couple in the tractor who had also alighted at

Malewadi corner along with them. He submits that who was the

third person, his identity has not been disclosed nor he has been

examined. He submits that possibility that third person could be

father of the deceased cannot be ruled out, for he was the

person who used to take deceased to Daskhed. While further it

can be seen that statement of priest of Daskhed had been

recorded by the police, however, he was not examined. Thus,

according to him, having regard to aforesaid, appreciation of

evidence by the trial court cannot be faulted with and that when

a possible view has been taken by the trial court, only for

another view is possible, it is not a case wherein acquittal

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deserves to be meddled with and reversed.

20. Evidence, particularly of the persons who are supposed to

have seen the accused and the deceased last together,

particularly, the one of Police Patil Mr. Shekte, does not inspire

confidence. The Police Patil has stated that he is expected to

maintain a diary and take down notes in the same. Whereas, it is

his case that he had wrote down names of the accused and the

deceased on a chit on 17th March, 2001, yet his evidence shows

that the diary maintained by him for the purpose does not find

noting about the incident. He had handed over said noting of 17 th

March, 2001 to the police subsequently and had not recorded the

incident in his diary on the relevant date. This chit - Exhibit-15 is

stated to have been of 17th March, 2001 whereas the same had

been given to the police during police statement on 20 th March,

2001. In his statement to the police on 19 th March, 2001, he

does not refer to such kind of a chit and that on 19 th March,

2001 while dead body was found and had been identified as that

of Palanka, the police had been directly sent to the residence of

Manik Barne, is an indication of that the Police Patil as suggested

on behalf of the defence had not been unwary of Manik Barne.

21. Apart from that the evidence of tractor driver and the

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hotelier also does not inspire confidence. The tractor appears to

have been used for transport of people and that the driver had

not been keeping note of and remembering the persons

travelling in the tractor as would emerge from the deposition of

tractor driver that he did not remember persons who had

travelled in the tractor before and after 17th March, 2001. He

further has not referred to as to who was the third person who

was travelling in the tractor along with the deceased and the

accused on 17th March, 2001. So is the case of the hotelier, who

could not be certain about that the corpse was of the woman to

whom he had offered tea and water on 17 th March, 2001. The

other persons who purported to have seen last the couple had no

previous acquaintance with the accused and the deceased and

had been passers by. Nor it appears that they could know their

names and it emerges they claim only once they had seen them

before. Sons of the deceased themselves have referred to that

their mother had not been of normal disposition and that she

used to be away from home quite often and that the people were

afraid of her. Further, there is evidence by parents of the

deceased that they had not been taking care of children of the

deceased, but they were under the care of their father - the

accused. Most importantly, the medical evidence shows that

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when strangulation is detected by external injuries, it necessarily

has to have internal injuries and that corresponding internal

injuries had been absent while post mortem on the corpse of

Palanka had been performed.

22. Learned APP has relied on a decision of the Supreme Court

in the case of "Ashok V/s State of Maharashtra" reported in (2015) 4 SCC

393 to impress upon that last seen together by itself may not be

a conclusive proof but along with surrounding circumstances,

particularly relations between accused and deceased, it would

lead to a presumption of guilt to the accused. Although this has

been so submitted, paragraph No. 12 of said judgment reads

thus -

" 12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc. non - explanation of death of the deceased, may lead to a presumption of guilt. "

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23. In the present matter, it is not the case that the deceased

and the accused had enmity between them or there was

previous hostility which has been brought on record. As such,

the citation may not be able to hold the present case. For similar

purpose, learned APP has also referred to and relied on another

judgment of the Supreme Court in the case of "Trimukh Maroti

Kirkan V/s State of Maharashtra" reported in (2006) 10 SCC 681. This

case, as well, in present facts of the case, would not be able to

tilt the scale in favour of the prosecution.

24. Having regard to aforesaid position, it would not be said

that the prosecution has been able to bring guilt to the accused

conclusively, coupled with that based on the evidence, the trial

court has already taken a view which is a possible view and

having regard to the circumstances, it would not be appropriate

to meddle with the same and reverse the decision of the trial

court. Appeal, therefore, is dismissed.

       [P. R. BORA, J.]              [SUNIL P. DESHMUKH, J.]



 drp/criapel116-03