Bombay High Court
Angad Jagannath Gadekar vs The State Of Maharashtra on 22 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-cri-appeal-401-14 @ appa-263-486-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 401 OF 2014
ALONG WITH
CRIMINAL APPLICATION NO. 486 OF 2018
AND
CRIMINAL APPLICATION NO. 263 OF 2018
Angad Jagannath Gadekar ... Appellant/Applicant
V/s.
The State of Maharashtra ... Respondent
----------------
Mr. Tejas Hilage for the Appellant/Applicant.
Ms P.P. Shinde, APP for the Respondent -State.
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 08.02.2021.
PRONOUNCED ON : 22.06.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and
order dated 2.9.2013 passed by the learned Additional
Sessions Judge Solapur in Sessions Case No. 182 of 2010. By
the impugned judgment and order, the appellant, who was
the accused before the trial court, has been convicted for the
ofence punishable under section 302 of the Indian Penal
Code (IPC) and sentenced to sufer Rigorous Imprisonment for
Life and to pay fne of Rs.2000/-, in default, to sufer Rigorous
Imprisonment for six months.
2] The deceased Shardabai was the wife of the present
appellant/accused. They both were residing at village Patekar
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Wasti, Tal. Madha, Dist. Solapur. It is alleged that the accused
used to suspect the character of the deceased and used to ill-
treat her. It is alleged that in the intervening night of 7.4.2010
and 8.4.2010, the accused came home at about 9.00 p.m.. He
found that the deceased was not at home. He therefore,
waited for the deceased to come. The deceased came home
at about 12.00 a.m.. The accused, who was already
suspecting the character of the deceased, thus got annoyed.
It is alleged that the accused then allowed the deceased to
sleep and while she was asleep, he assaulted her by wooden
log on her head and committed her murder.
3] The accused was charged and tried for the ofence
punishable under section 302 of the IPC. As stated earlier, the
trial court by the impugned judgment and order convicted the
present appellant/accused for the ofence punishable under
section 302 of the IPC.
4] We have heard learned Counsel for the appellant/
accused and learned APP for the respondent -State.
5] The learned counsel for the appellant/accused has not
questioned before us the fnding of the trial court that the
death of the deceased was homicidal. The learned counsel for
the accused has, however, submitted that the trial court erred
in holding, that the accused was responsible for committing
the murder of the deceased.
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6] We have perused the evidence on record. The
prosecution in order to prove the motive has examined PW-1
Dinkar P. Mandave, the brother of deceased and PW-2 Sagar
Anand Gadekar, the son of deceased.
7] PW-1 Dinkar has stated in his evidence that the
deceased Shardabai was his sister. Her marriage was
solemnized with the accused before 25 years. The accused
used to ill-treat his sister. The accused said to him that he is
not ready to maintain the deceased. As such, he brought the
deceased to his house. His sister had then fled Suit against
the accused in Mohol Court. His sister resided with him for
three years and thereafter the matter was settled and she
went back to cohabit with the accused.
8] PW-2 Sagar, the son of the deceased, has stated in his
evidence that his father used to ill-treat his mother on the say
of PW-8 Samadhan. His father was not providing food to his
mother.
9] In the cross-examination, the evidence of PW-2 with
regard to ill-treatment has not been challenged. PW-2 has,
however, admitted that since his childhood he is residing with
his uncle PW-1 Dinkar.
10] The trial Court has held that the accused and the
deceased were married for 25 years. The trial court has thus
disbelieved the alleged motive attributed to the accused for
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committing the crime in - question. We are, however, of the
view that the said fnding of the trial Court is not correct. Just
because the accused and the deceased were married for 25
years that by itself is not sufcient to draw an inference that
the accused was not suspecting the character of the
deceased. PW-2 has in no uncertain terms stated that
accused was ill-treating his mother. There is no reason for
PW-2, the son of the accused to depose against him. From the
evidence of PW-1 and PW-2, it can be safely concluded that
the accused was not treating the deceased well and obvious
reason appears to be his suspicion about the character of the
deceased.
11] In the present matter apart from the other
circumstances, which the trial court has relied upon, there is a
confessional statement of the accused recorded by PW-7
Shankar Pawar, who at the relevant time was working as
Judicial Magistrate, First Class, Madha. In the said confessional
statement the accused has confessed that he assaulted the
deceased by wooden log in the intervening night of 7.4.2010
and 8.4.2010.
12] The trial court has discarded the confessional statement
of the accused for no valid reasons.
13] It is not the stand of the accused in his statement under
section 313 of the Cr.P.C. that he was threatened or induced
by the police to give confessional statement or contents of
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the confessional statement are not according to confession
made by him to PW-7. The stand of the accused in his
statement under section 313 of Cr.P.C. is that whatever PW-7
has stated in his evidence is false. In such circumstances, the
trial court ought not to have discarded the confessional
statement of the accused on technical irregularity.
14] Apart from above, admittedly the deceased and the
accused were residing together. Initially the accused mislead
the police authorities by disclosing them that his adjoining
land owners, with whom he is on cross-terms on account of
dispute in relation to boundaries of their felds, had killed his
wife and he too was assaulted. The accused has, however, in
his statement under section 313 of the Cr.P.C. ofered no
explanation at all in relation to incident in question. It is not
the case of the accused that he was not present at the time of
incident or some other persons caused the death of his wife.
The trial Court, in our view, was therefore, justifed in
connecting the accused with the alleged crime with the aid of
Section 106 of the Indian Evidence Act.
15] The question is however, whether in the facts and
circumstances of the case, the trial court was justifed in
convicting the appellant/accused for the ofence punishable
under section 302 of the IPC ?
16] A perusal of confessional statement shows that on the
day of incident the accused came home at about 9.00 p.m.
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The deceased at that time was not at home. The deceased
came home at about 12.00 p.m.. She did not respond to any
of the queries of the accused. The accused, therefore, got
annoyed. He, thereafter, assaulted the deceased while she
was asleep. The incident, therefore, does not appear to be
premeditated.
17] PW-11 Dr.Amol S.Gosavi, who conducted the
postmortem on the dead body of deceased, has found the
following injuries on the person of deceased.
(i) sutured wound over forehead oblique on left side;
7 x 1 cm; brownish,
(ii) sutured wound over forehead oblique on right side;
8 x 11 cm; brownish,
(iii) sutured wound over left parietal region; 1 x 0.5 cm;
brownish.
According to PW-11, the deceased died due to head
injury. PW-11 has admitted in his cross-examination that he
is unable to state whether the sutured wounds were simple or
grievous. Considering the evidence of PW-11, it cannot be
said that accused acted in a cruel manner.
18] Considering overall facts and circumstances of the case,
we are of the view that in the present case Exception 4 to
section 300 of the IPC would attract. The appellant, therefore,
deserves to be convicted for the ofence punishable under
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section 304(I) of the IPC. In the result, the following order :
ORDER
i] Criminal Appeal is partly allowed.
ii] The conviction of the appellant for the ofence
punishable under section 302 of the IPC vide judgment
and order dated 2.9.2013 passed by the learned
Additional Sessions Judge, Solapur in Sessions Case
No.182 of 2010 is quashed and set aside.
iii] The conviction of the appellant is altered to an
ofence punishable under section 304(I) of the IPC and he
is sentenced to rigorous imprisonment for ten (10) years.
iv] Sentence of fne is maintained.
v] Considering the facts and circumstances of the
case, appellant shall not be granted any remission, which
means the appellant will have to undergo actual
imprisonment of 10 years.
vi] The appellant is in Jail. He is entitled to set of for
the period already undergone.
vii] Criminal Application Nos.263 of 2018 and 486 of
2018 do not survive and the same are disposed of
accordingly.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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