Bombay High Court
Bhimrao S/O. Bhagwan Bansod vs The State Of Maharashtra on 17 February, 2021
Bench: R.V. Ghuge, B. U. Debadwar
906APPLN2030.2019
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 2030 OF 2019
IN
CRIMINAL APPEAL NO. 677 OF 2020
Bhimrao s/o Bhagwan Bansod ...Applicant
(Orig. Accused)
Versus
The State of Maharashtra ...Respondent
.....
Shri. Sudarshan J. Salunke, Advocate for the applicant
Shri. K. S. Patil, APP for respondent/State
.....
WITH
CRIMINAL APPEAL NO. 677 OF 2020
Bhimrao s/o Bhagwan Bansod ...Appellant
(Orig. Accused)
Versus
The State of Maharashtra ...Respondent
.....
Shri. Sudarshan J. Salunke, Advocate for the applicant
Shri. K. S. Patil, APP for respondent/State
.....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
DATE : 17th FEBRUARY, 2021
PER COURT : -
1. The appeal has been admitted vide order dated
18.12.2020. By this Criminal Application, the applicant-appellant
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seeks suspension of the substantive sentence and enlargement on bail.
He has been convicted by the impugned Judgment dated 30.03.2019
in Sessions Case No. 62/2015 for having committed an offence of
murdering his wife, punishable under Section 302 of the Indian Penal
Code.
2. We have heard the strenuous submissions of the learned
Advocate for the applicant-appellant and learned Prosecutor on behalf
of the State. With their assistance, we have gone through the appeal
paper-book.
3. The learned Advocate for the applicant-appellant has
relied upon the following judgments delivered by this Court : -
(a) Syed Aslam Syed Abdul Versus State of Maharashtra,
2008 BCI 68, and;
(b) Sou. Ranjana alias Changuna Prakash Sonawane v. State
of Maharashtra, 2018 (3) ABR (Cri) 487.
4. The first informant is the mother of the deceased-woman,
who was the wife of the applicant-appellant. By her complaint dated
12.06.2015 filed with the Kaij Police Station, she has stated that after
her daughter got married to the accused in 2012, her initial period of
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marital life was in bliss. The accused and his wife were living alone in
their residence. As the deceased was not able to give birth to a child
and since the accused developed the habit of drinking, he used to
abuse and harass the deceased and at times assaulted her. The
informant claimed that, the deceased had narrated her woes to her
(informant) and by involving certain relatives, the accused was
repeatedly counseled. However, he did not change his attitude and
behaviour.
5. The informant, however, stated that on 11.06.2015,
when she was at her residence at Rahuri, she got a call from the real
brother of the accused around 05:00 pm, informing her that the
deceased had suffered an 'attack' and she was advised to reach the
residence of the accused and carry away her daughter. The informant
informed her brother Gautam about the said phone call and along
with few others, she rushed to Kaij. These persons reached the
residence of the accused around 02:00 am on 12.06.2015. Gautam
informed the informant, after viewing the condition of the deceased
that, she was no more and there were strangulation marks on her
neck. The body of the deceased was taken to the Government
Hospital at Kaij for post-mortem. The informant has then stated the
details as regards the condition of the body, in her complaint.
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6. We have perused the testimonies of the witnesses, who
are examined by the prosecution. We have also perused the inquest
panchanama [Exh. 30]. PW4 is the Doctor, who had conducted the
post-mortem and the inquest panchanama. Her deposition is at
Exh.29. Her narration in paragraph nos. 2 to 6 read as under : -
"2. I conducted the postmortem to ascertain exact cause of death.
I started postmortem at 12.30 p.m. and concluded the same at
1.30 p.m. The body was of a 30 year old Hindu female. I
found multiple cresentric abrasions of size ranging from 0.2
c.m. to 0.6 c.m. present over anterolater aspect of neck
bilaterally which were reddish and brownish in colour and
cresentric abrasions over face at angle of mandible on right
side.
3. On internal neck dissection there was evidence of petechial
hemorrhages present above thyroid. Evidence of infiltration
of blood seen in strap muscles of neck. Evidence of fracture of
hyoid bone on right side. Decomposed frothy fluid seen in
larynx and trachea and bronchi, mucosa was decomposed.
4. The body was bloated and distended and rigor mortis had
passed off. There were signs of decomposition. Like foul
smell, bloating of abdomen, marbling of skin on chest, oozing
of foul smelling postmortem fluid from mouth and nostrils.
Tip of tongue was protruding.
5. According to my opinion, cause of death is "asphyxia due to
throttling". Accordingly, I prepared the postmortem report. I
am know shown the said report. It bears my signature. It is
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in my handwriting. Contents of the same are true and correct.
It is marked as Exh.30.
6. If a person is lying on bed and her neck is pressed such cause
of death is possible."
7. In her cross-examination, she has supported her findings
in the post-mortem and her testimony. We find that she has stated
that if a person is lying on a bed and her neck is pressed, such type of
death is possible.
8. It is not the case of the accused that besides him and his
wife, there was any other member of the family residing together in
the same premises. It is also not the story put up by the accused that
he was not in the house when the deceased may have been
strangulated. There is no evidence before the Court to indicate that
the body of the deceased was hanging to a hook attached to the
ceiling or that the door of the house was bolted from inside and the
door had to be broken open to gain access to the body or an entry in
the house.
9. The accused had an opportunity of explaining away the
incriminating circumstances under Section 313 of the Code of
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Criminal Procedure. Neither has he put forth any story, nor has he
explained as regards he being along with his wife in the house at the
time of her strangulation. His only contention is that, he has been
implicated.
10. In Neel Kumar Vs. State of Haryana, (2012) 5 SCC 766,
the Hon'ble Apex Court has held that, it is a duty of an accused to
explain away the incriminating circumstances against him. Though
he may have a right to silence, maintaining silence and declining the
opportunity of explaining, even by way of an alibi, would gain him no
advantage. If he fails to explain away such incriminating
circumstances, it would be an additional link which would be used
against him. In the light of the said judgment, we are unable to
follow the view taken by a coordinate bench of this Court in Sou.
Ranjana (supra), since the judgment in Neel Kumar (supra) was not
cited before our learned brothers.
11. In Syed Aslam (supra), an Odhani was discovered and
seized. This Court concluded that, the deceased may have been
strangulated with the aid of the Odhani. This Court concluded that,
as the accused was not proved to be found alone in the house at the
time of the death of the deceased since he runs a Pan stall and would
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have been at his Pan stall in between 03:00 to 03:30 pm, it could not
be said that Section 106 of the Evidence Act would operate against
him.
12. In the case in hands, there has been no Odhani as being
an article said to have been used by the deceased for strangulating
herself. There is no evidence of the door having been locked from
inside so as to conclude that she committed suicide.
13. In view of the above, we do not find that this is a fit case
for suspending the substantive sentence. This application, being
devoid of merit, is therefore rejected.
[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]
JUDGE JUDGE
SG Punde, PA
