Arun Gulab Bagul vs The State Of Maharashtra
2021 Latest Caselaw 10359 Bom

                                                           CriApeal-219-2014
                                     -1-


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 219 OF 2014

 Arun Gulab Bagul
 Age : 30 years, Occu. Nil
 R/o. At Kharde-Patharde,
 Taluka-Shirpur, District Dhule                       ... Appellant

          Versus

 The State of Maharashtra
 Through Nandurbar Police Station,
 Nandurbar, Dist. Nandurbar                           ... Respondent

                                 ......
 Mr. Mukul Kulkarni, Advocate for the Appellant.
 Mr. S. J. Salgare, APP for the Respondent-State.
                                   .....

                                   CORAM : V. K. JADHAV AND
                                           S. G. DIGE, JJ.
                                   RESERVED ON       : 09.07.2021
                                   PRONOUNCED ON : 05.08.2021

 JUDGMENT (PER V. K. JADHAV, J.) :

1. This Appeal is directed against the judgment and order of

conviction passed by the District and Sessions Judge, Nandurbar

dated 10.1.2014 in Sessions Case No. 28 of 2011, convicting

thereby the appellant-accused for the offence punishable under

Sections 302 and 324 of IPC and sentencing to suffer imprisonment

for life and to pay fine of Rs.1000/- in default to suffer rigorous

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imprisonment for one year for the offence punishable under

Section 302 of IPC and to suffer rigorous imprisonment for six

months and to pay fine of Rs.1000/-, in default to suffer rigorous

imprisonment for one month for the offence punishable under

Section 324 of IPC.

2. Brief facts of the prosecution case are as follows:

a. Complainant Bhartibai is the legally wedded wife of the

appellant-accused. Their marriage was solemnized 5/6 years prior

to the incident. The couple is blessed with two children by name

Krish aged five years and a daughter by name Pooja. Deceased

Pooja was one year old at the time of the incident. The appellant-

accused and complainant Bhartibai were residing at village Kharde,

Taluka Shirpur along with their children. Some six months after

their marriage, the appellant-accused started beating and abusing

Bhartibai on petty grounds. He was addicted to liquor and used to

suspect about her character. Marriage of the uncle of complainant

Bhartibai, namely Dipak, was scheduled on 25.02.2011 at village

Borale. The parents of complainant Bhartibai are also residents of

village Borale. Thus, the brother of complainant, namely

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Chandrashekhar had taken the complainant to village Borale on

09.02.2011. After 3/4 days of it, the appellant-accused had been to

village Borale. He was under the influence of liquor. He started

arguing as to why his parents-in-law did not invite him for Dipak's

marriage. The appellant-accused started insisting complainant

Bhartibai to immediately accompany him to village Kharde. Even

he extended beating to her and pressed her neck. Further, the

appellant-accused threatened the complainant that he would kill

her or their children with knife.

b. On 19.02.2011 at about 4.00 p.m., complainant Bhartibai

along with her parents was at the threshing ground at their field

near village Borale. Complainant Bhartibai was washing a bucket

and she had kept her daughter Pooja on a cot. Her father had gone

for switching on electric motor while her mother Nirmalabai was

doing some agricultural work. At that time, the appellant-accused

suddenly arrived there. He was under the influence of liquor. He

started abusing the complainant. The appellant-accused started

insisting the complainant to immediately accompany him to village

Kharde. However, complainant Bhartibai told him that she would

not accompany him before her uncle's marriage is solemnized. The

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appellant-accused got annoyed. He took out a knife from his pant

pocket, went towards the cot and hit his daughter Pooja with the

knife on her neck twice. The appellant-accused then started

assaulting complainant Bhartibai and inflicted blows on her cheek

and left shoulder with the use of that knife. Complainant Bhartibai

raised shouts. Her parents came there. The accused started running

towards village Borale. However, some villagers caught hold of the

appellant-accused and took him in an auto rickshaw to the police

station. Complainant Bhartibai and injured Pooja were immediately

shifted to the Government Hospital at Nandurbar. Pooja

succumbed to the injuries. Thereafter, complaint of Bhartibai was

recorded. In the meantime, the appellant-accused was taken to the

police station. Villagers had kept him in the backside of the

rickshaw and therefore, he sustained burns due to the heated

surface of the rickshaw. PSI Nikam drew a panchanama to that

effect and then referred him to the Civil Hospital, Nandurbar.

c. On the basis of the complaint lodged by Bhartibai Exhibit 19,

crime no. 36 of 2011 for the offence punishable under Sections

302, 307, 498-A, 323, 504, 506 of IPC came to be registered at

Nandurbar Police Station. PW11 PI Keshav Naik took over the

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investigation of the crime. He drew the inquest panchanama and

seizure of the clothes of the deceased. He also went to the place of

incident and drew spot panchanama Exhibit 27 and seized the soil

with and without blood, a knife and a broken pot from the place of

the incident. He then visited the hospital and inquired with

complainant Bhartibai. He also noted that the accused had

sustained burn injuries and was admitted in the Civil Hospital,

Nandurbar for treatment. He seized the cloths of the complainant

Bhartibai as per the panchanama Exhibit 46. He also seized the

cloths of accused in terms of the panchanama Exhibit 36. He

recorded the statement of the witnesses. He sent the muddemal

articles to the office of C.A. He further collected the documents like

marriage invitation card, medico-legal certificate and postmortem

report and after completion of the investigation, submitted the

charge-sheet against the accused in the Court.

d. Learned District and Sessions Judge, Nandurbar framed

charge against the accused for the offence under Sections 302, 307,

498-A and 506-II of IPC. The contents of the charge-sheet were

read over to the appellant-accused. The appellant-accused pleaded

not guilty to the charge and claimed to be tried. The prosecution

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has examined in all 11 witnesses to substantiate the charge levelled

against the accused. The appellant-accused has given a statement

under Section 313 of Cr.P.C. in response to the examination under

Section 313 of Cr.P.C. to explain the intimidating circumstances.

The appellant-accused has submitted his statement in writing. It is

contended in the said statement that on the day of incident, he had

been to the agricultural field of the parents of his wife complainant

Bhartibai. Complainant Bhartibai got annoyed by seeing him in the

field. The appellant-accused had called upon her to explain as to

why she left the matrimonial home along with all the luggage

without intimating him. The appellant-accused told her that after

her uncle's marriage is performed, they all would return to their

house. However, complainant Bhartibai got annoyed and informed

him that she would never come to her matrimonial home and

instead, she would die and kill her children. The appellant-accused

has further explained in his statement that by saying so,

complainant Bhartibai rushed towards the hut, brought one knife

and gave blows of knife twice on the neck of their daughter Pooja.

Complainant Bhartibai further caused self inflicted injuries with the

use of knife on her cheek and shoulder. The appellant-accused has

also examined himself as defence witness no.1 Exhibit 63.

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3. The learned District and Sessions Judge, Nandurbar, by

judgment and order dated 10.01.2014 in Sessions Case No. 28 of

2011, convicted the appellant-accused for the offence punishable

under Sections 302 and 324 of IPC and sentenced him as under :

1. Accused is hereby sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/- (Rs. One Thousand only) in default to suffer rigorous imprisonment for one year, for the offence punishable under section 302 of IPC.

2. Accused is also hereby sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.1000/- (Rs. One Thousand only) in default to suffer rigorous imprisonment for one month, for the offence punishable under section 324 of IPC.

3. Both substantive terms of imprisonment shall run concurrently.

4. Accused shall be entitled for set off as is permissible under section 428 of Code of Criminal Procedure.

CriApeal-219-2014

4. Learned counsel for the appellant-accused submits that the

evidence of PW1 Bhartibai (complainant) does not inspire

confidence. She has admitted in her cross-examination that while

going to her parents' village, namely Borale, she had brought with

her all her belongings including the utensils and other household

articles. She had hired an auto rickshaw for carrying the same. It

appears from the prosecution story that complainant Bhartibai got

annoyed because the appellant-accused had not only followed her

to her parents' house without invitation to attend the marriage, but

further insisted her to return to her matrimonial home. Learned

counsel for the appellant-accused submits that complainant

Bhartibai was a short tempered woman. Thus out of anger and in a

heat of passion, she had stabbed her own daughter by expressing

herself that she would die and also let her children die but she will

never return to her matrimonial home again. Learned counsel

further submits that there was no reason for the appellant to make

an assault on his own daughter and further to assault the

complainant. Learned counsel submits that the prosecution story

and the defence version goes parallel and in view of the same, a

doubt is created as to who has actually assaulted deceased Pooja.

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Learned counsel submits that the accused is thus entitled for

benefit of doubt.

5. Learned counsel submits that complainant Bhartibai has not

narrated the incident to the police. She was unconscious when

admitted in the hospital. She regained consciousness in the hospital

itself. She has further admitted in her cross-examination that she

was not in a position to talk on the day of incident, after the

incident was over when she was immediately shifted to the

hospital. PW Bhartibai has admitted in her cross-examination that

she started talking on the next day morning and her father was

with her till the morning. Learned counsel submits that the

complaint Exhibit 19 shown to have been lodged on the day of

incident itself i.e. on 19.02.2011. If PW Bhartibai started talking on

the next day morning, then it is clear that she has not narrated the

contents of the complaint Exhibit 19 on 19.02.2011. Learned

counsel submits that in the midst of her cross-examination, learned

Judge of the trial court observed that PW Bhartibai can talk Ahirani

language and she cannot talk Marathi properly. Thus, as of sudden,

the learned Judge called an interpreter and completed further

cross-examination of PW Bhartibai with the help of the interpreter

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who is none else but an Advocate. Learned counsel submits that

appointment of the interpreter in the midst of cross-examination

has caused prejudice to the defence of the accused. Further, no

established procedure was followed for appointment of the

interpreter. Learned counsel submits that the trial vitiates on this

ground alone.

6. Learned counsel submits that the trial court has not

considered the evidence of the appellant-accused on oath. He has

deposed on oath before the court explaining all the circumstances.

The appellant-accused had insisted PW Bhartibai to return to her

matrimonial home after the marriage ceremony of her uncle is

over. PW Bhartibai therefore got annoyed. She had made a

statement of killing herself and her children instead of returning to

her matrimonial home. She had thereafter brought a knife from the

hut itself and inflicted injuries with the use of knife on the neck of

her small daughter Pooja and further caused self inflicted injuries

on her cheek and shoulder. Learned counsel submits that

considering the size of the knife, it was impossible for the

appellant-accused to carry the said knife in his pocket as alleged.

PW Bhartibai could not bear the shock of her own behaviour and

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despite she had sustained minor injuries on her cheek and

shoulder, she came to be admitted in the hospital. There were no

blood stains on the cloths of the the accused. Further, the weapon

knife was also found lying on the spot itself. The appellant-accused

did not try to run away from the spot. He was caught hold by the

villagers and kept in the backside of the auto rickshaw in such a

manner that he sustained burn injuries on his person due to the hot

surface of the auto rickshaw. Learned counsel submits that there is

a thin line between the prosecution story and the defence version

and in view of the same, the appellant-accused is entitled for the

benefit of doubt.

7. Learned counsel or the appellant-accused, in order to

substantiate his contention, placed reliance on the following cases :

1. State of Uttarakhand v. Darshan Singh, reported in (2010) 12 SCC 605.

2. Sunil Kundu and Others v. State of Jharkhand, reported in (2013) 4 SCC 422.

CriApeal-219-2014

8. Learned APP submits that PW Bhartibai had returned to her

parents' house along with her belongings and the children. She had

no intention to go back to her matrimonial home. She was in the

village of her parents and she was very much protected there. If the

appellant-accused had come to the field as on the date of the

incident and insisted her to return to the matrimonial home, there

was no reason for PW Bhartibai to get annoyed to such an extent to

kill her own daughter. On the other hand, there was a strong

motive for the appellant-accused to abuse and threaten PW

Bhartibai for returning to the matrimonial home and it was obvious

on his part to get annoyed when PW Bhartibai had flatly refused to

return. Learned APP submits that the evidence of PW Bhartibai is

reliable, trustworthy, consistent and inspiring confidence. PW

Bhartibai had also sustained injuries on her cheek and shoulder.

There is no cross-examination of the Medical Officer PW 7 Dr.

Jaimala Vasave that PW Bhartibai had self inflicted the injuries.

Learned APP submits that the injuries on the person of PW

Bhartibai, so also on the person of deceased Pooja are possible by

knife as opined by PW 7 Dr. Jaimala Vasave. Learned APP submits

that the defence of the appellant-accused is after thought. The trial

court has rightly discarded the defence raised by the appellant-

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accused. Learned APP submits that so far as recording of further

cross-examination with the help of the interpreter is concerned, the

trial court had taken the help of the interpreter because PW

Bhartibai is knowing Ahirani language well compared to Marathi.

Even the appellant-accused had not raised any objection for that.

The appellant-accused had not argued the said aspect. The

appellant-accused is now taking undue advantage of the same.

Learned APP submits that the prosecution has proved its case

beyond reasonable doubt. The appeal is liable to be dismissed.

9. To substantiate his contention, learned APP has placed

reliance on the following cases:

1. Decision of Delhi High Court dated 26.05.2011 in Crl. A. 2/2011 & Crl.M. (Bail) 1/2011 [Ram Babu v. State (Govt. of NCT) of Delhi]

2. Namdeo v. State of Maharashtra, reported in (2007) 14 SCC 150

10. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witnesses, the

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statement of the appellant-accused recorded under Section 313 of

the Criminal Procedure Code, the evidence of the appellant-

accused himself and the impugned judgment. After giving our

thoughtful reflection to the matter, we are wholly satisfied that

there is no substance in this appeal and it must be dismissed.

11. We have two versions of the same incident which had taken

place on 19.02.2011 at about 4.00 p.m. in the agricultural field of

the parents of PW 1 Bhartibai.

PW 1 Bhartibai was at the threshing floor of the field along

with her children and parents. At that time the appellant-accused

came there and started insisting her to return to the matrimonial

home. She had refused to go with him. The appellant-accused got

annoyed, stabbed their daughter near her neck with the knife. The

appellant-accused also gave blows of knife on the cheek and

shoulder of PW 1 Bhartibai. Though the appellant-accused tried to

run away from the spot, the villagers apprehended him and took

him to the police station.

As per the defence version, the appellant-accused had

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insisted PW 1 Bhartibai to return to her matrimonial home after the

marriage of her uncle is performed. PW 1 Bhartibai therefore got

annoyed. She made a statement of killing herself and her children

instead of returning to her matrimonial home. She had thereafter

brought a knife from the hut itself and inflicted injuries with the

use of that knife on the neck of her small daughter Pooja and

further self inflicted injuries on her cheek and shoulder.

12. There are arguments and counter arguments as to which

story is true and believable. The trial court has accepted the

prosecution story and discarded the defence version. Learned

counsel for the appellant-accused has tried to convince us as to

how the defence story is true. He submits that the trial court has

not considered the evidence of the appellant-accused on oath. He

submits that it was impossible for the appellant-accused to carry

the said knife in his pocket as alleged. PW Bhartibai herself got

annoyed because of the insistence of the appellant-accused to

return to the matrimonial home. Thus, she stabbed her own

daughter and also self inflicted injuries on cheek and shoulder by

making a statement of killing herself and her children instead of

returning to the matrimonial home. Learned counsel submits that

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PW 1 Bhartibai was a short tempered woman and she left her

matrimonial house along with her belongings and children as of

sudden, without even intimating the appellant-accused. This

conduct on her part indicates her hypersensitive nature. Thus, the

defence version appears to be truthful.

13. In the backdrop of these statements, it is necessary to

consider certain facts. PW 1 Bhartibai got married with the accused

six years prior to the incident. They have got one son and one

daughter out of their marital wedlock. Their son Krish was five

years of age and deceased Pooja was one year old at the time of the

incident. After marriage, PW 1 Bhartibai started residing with the

appellant-accused at village Kharde. It has come in her evidence

that after marriage, the appellant-accused used to beat her under

the influence of liquor. She had gone to her parents' house to

attend the marriage ceremony of her uncle Dipak at village Borale.

She had come to village Borale 10 to 12 days before the said

marriage. She has admitted in her cross-examination that while

going to village Borale, she had brought with her all her belongings

such as utensils and other household articles. She has further

deposed that after 4/5 days, her husband appellant-accused came

CriApeal-219-2014

at village Borale and started insisting her to come back to the

matrimonial house. Though she told him that she will come after

the marriage ceremony of her uncle, the appellant-accused, who

was under the influence of liquor, started insisting her to come

with him forthwith. She has deposed that even the appellant-

accused had tried to throttle her neck with his hands. The

appellant-accused even gave threats to her that he would kill her

with knife and thereafter he left the place.

14. PW Bhartibai was in the village of her parents and she was

under protection of her parents. She must be knowing that against

her will, the appellant-accused could not take her with him

forcibly. On the other hand, the appellant-accused was feeling

helpless. He got annoyed because PW Bhartibai left the

matrimonial house without his permission along with her

belongings and the children. The appellant-accused had insisted

her to come along with him forthwith and also tried to throttle her

neck with the help of his hands. The appellant-accused had given

threats to her. After 2/3 days, the appellant-accused went to the

threshing floor of the field of the parents of PW Bhartibai. She was

present there along with her children and parents. The appellant-

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accused again started insisting her to come along with him. She

refused to come with him. The appellant-accused thereafter

assaulted his own daughter, stabbed near her neck with the knife

and also gave blows of knife on the cheek and shoulder of PW

Bhartibai. We find the evidence of PW Bhartibai trustworthy,

reliable and consistent.

15. There was a motive for the appellant-accused to stab his own

daughter and his wife PW Bhartibai. The appellant-accused had

repeatedly insisted PW Bhartibai to come along with him and on

her refusal, got annoyed. Some 2/4 days prior to the incident, he

had made one attempt of physical assault and in the second

attempt, he went in the field along with a knife. The assault was

predetermined. It appears that the appellant-accused had assaulted

his own daughter out of frustration. As against this, PW Bhartibai

was in the house of her parents, well protected. She had returned

to her parents' house along with her belongings and the children in

one hired auto rickshaw from her matrimonial home. It appears

that she had been to her parents' house with some determination.

It is very unlikely on her part and there was no reason for her to

make an assault on her own daughter and to cause self injuries

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with the help of a knife. We are therefore not inclined to accept the

defence version. The trial court has rightly believed the prosecution

story.

16. The evidence of PW Bhartibai is well corroborated by the

evidence of her father PW 2 Gulab Tulshiram Koli. The Muddemal

article knife was seized from the spot itself while drawing spot

panchanama Exhibit 27. PW 7 Dr. Jaimala Vasave conducted

postmortem examination on the dead body of Pooja. She has noted

two injuries on the dead body; (i) CLW on right side of neck - deep

wound about one inch (punctured wound) and (ii) CLW cervical

region - right lateral side ad-measuring 5 cm x 3 cm x 5 cm. PW 7

Dr. Jaimala Vasave has also noted two injuries on the person of PW

Bhartibai, i.e. (i) CLW on right cheek ad-measuring 4 cm x 4 cm x

3 cm and (ii) CLW on left shoulder region ad-measuring 5 cm x

6 cm x 5 cm. PW 7 Dr. Jaimala Vasave has also opined that the

injuries on the person of the dead body of Pooja so also on the

person of PW Bhartibai are possible by the Muddemal article knife

before the court. The C.A. report Exhibit 54 speaks about human

blood on Exhibit 1 knife. Exhibits 6 and 7 i.e. the blouse and sari of

PW Bhartibai also found stained with blood and it was human

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blood. PW Bhartibai had sustained bleeding injuries on her person

due to the assault on her made by the appellant-accused by using

knife. Furthermore, her daughter was lying in a pool of blood. In

view of the same, it is not surprising if her clothes were found

stained with blood. So far as the appellant-accused is concerned,

after giving blows on the one year old daughter and after

assaulting his wife PW Bhartibai, he ran away from the spot of

incident and consequently, no blood stains appeared on his cloths.

17. We find no substance in the submission made on behalf of

the appellant-accused that it was not possible for the appellant-

accused to carry such a big knife in his pocket from his village to

the agricultural field of the parents of PW Bhartibai. Learned

counsel for the appellant-accused has vehemently submitted about

the role of the interpreter in the midst of the cross-examination of

PW Bhartibai. However, the appellant-accused has not raised any

objection about appointment of the interpreter and the further

cross-examination of PW Bhartibai recorded with the help of the

interpreter.

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18. So far as the admission given by PW Bhartibai in her cross-

examination about her unconsciousness and regaining

consciousness on the next day morning, we find no substance in

the submission that the contents of the FIR have been dictated by

some other person. PW Bhartibai has narrated the incident in detail

and therefore, such a stray admission during cross-examination is

having no significance. PW Bhartibai has admitted the contents of

the FIR Exhibit 19 as narrated by her and it bears her thumb

impression.

19. So far as the two cases relied upon by learned counsel for the

appellant-accused are concerned, those cases are general cases of

appreciation of evidence and hardly concerned with the facts and

circumstances of the present case.

20. To sum up, the evidence of PW Bhartibai inspires confidence.

Her evidence is well corroborated. It leaves absolutely no iota of

doubt in our minds that the appellant murdered his own daughter

Pooja on the date, time and place as alleged by the prosecution.

The evidence of recovery of knife and the existence of motive

provide a very strong corroboration to the evidence of PW

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Bhartibai. Hence, we proceed to pass the following order :

ORDER

I. Criminal Appeal No. 219 of 2014 is hereby dismissed.

II. Criminal Appeal No. 219 of 2014 is accordingly disposed off.

       (S. G. DIGE, J.)                          (V. K. JADHAV, J.)




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