Yeshwant Harishchandra Walvi vs The State Of Maharashtra
2021 Latest Caselaw 15543 Bom

Sherla V.


                                                                               Apeal.747.2013 (R).doc

              Digitally signed by
VISHWANATH
              VISHWANATH
              SATYANARAYANA
SATYANARAYANA SHERLA
                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHERLA
              Date: 2021.10.28
              12:27:43 +0530
                                              CRIMINAL APPELLATE SIDE

                                           CRIMINAL APPEAL NO.747 OF 2013

                          Yeshwant Harishchandra Walvi
                          r/Nevale, Taluka: Palghar                                ... Appellant
                          District Thane
                                        Vs.
                          State of Maharashtra
                          at the instance of Boisar Police Station              ... Respondent
                          vide C.R. No.134/2011



                         Ms.Keral Mehta i/b Niranjan Mundargi for the Appellant

                         Mr.S.S. Hulke, APP, for Respondent - State

                                                   CORAM: S.S. SHINDE &
                                                          S.P. TAVADE, JJ.

                              JUDGEMENT RESERVED ON: OCTOBER 25, 2021

                           JUDGEMENT DELIVERED ON: OCTOBER 28, 2021


                         JUDGEMENT (PER S.S. SHINDE, J.):

1. This Appeal challenges the impugned judgment and order

dated 21st June, 2013 passed by the learned Sessions Judge,

Palghar in Sessions Case No.35 of 2011, whereby the appellant -

accused was sentenced to suffer R.I. for life and payment of fine of

Rs.5,000/- and in default thereof, to suffer R.I. for four months.

Apeal.747.2013 (R).doc

2. The prosecution case in brief is as under:

The first informant, namely, Miss Suvarna Lilka used to

reside with her grandmother at village Nevale, Taluka Palghar, as

her father Subhash Lilka had expired and her mother Lalita got

married with the Appellant - Yeshwant Harishchandra Walvi. The

first informant used to reside in the house of her father Subhash

Lilka in the same area with her grandmother. She also used to

visit her mother as and when required.

It is the case of the prosecution that Lalita, the deceased,

was a labourer and her husband, the appellant - accused, was

unemployed. He was addicted to liquor consumption and used to

demand money from the deceased and quarrel with her on that

count. He even used to abuse and assault the deceased on many

occasions. On 27th February, 2011, at about 8 am, the first

informant was passing near the house of the deceased, when she

heard some quarrel was going on between the appellant and the

deceased. She did not pay attention to it as she thought it to be a

routine matter and went to the weekly market at Vangaon. She

returned home after 12pm. At about 3pm, she went to the house

of her mother Lalita where she noticed that her step father i.e., the

Apeal.747.2013 (R).doc

appellant, was standing in the courtyard of the house. She

entered the house and noticed that blood was oozing from the

head injury of her mother Lalita. There were injuries on the face

and ear of her mother Lalita. She tried to wake up the deceased

but there was no response. She also noticed that a wooden log

was lying nearby with blood stains on it. Then, she made

telephone calls to her grandmother and aunt Kalpana Madhukar

Lilka and informed about the incident to them. Her aunt and uncle

reached there at about 8pm. They also tried to awaken her but

there was no response from the deceased. Thereafter, the first

informant lodged complaint against the appellant, bearing F.I.R.

No.134 of 2011 with Boisar Police Station, Taluka Palghar for the

offence under section 302 of the Indian Penal Code. After

completion of the investigation, chargesheet came to be filed and

as the matter was triable by the Court of Sessions, the case was

committed to the Court of Sessions.

3. Charge came to be framed on 19th October. The trial ended

in conviction of the appellant whereby the appellant was

sentenced to suffer R.I. for life and payment of fine of Rs.5,000/-

and in default thereof, to suffer R.I. for four months.

Apeal.747.2013 (R).doc

4. Ms.Mehta, learner Advocate appearing on behalf of the

appellant invited our attention to the evidence of prosecution

witnesses and submitted that the prosecution has utterly failed to

establish the role of the appellant in the alleged commission of the

offence. The prosecution has not brought on record any evidence

suggesting that the accused was present at the relevant time

within the proximate time of the alleged incident. It is submitted

that Lalita (the deceased) was in the habit of consuming liquor and

lie over the road in breed condition, as deposed by PW1 Suvarna

Lilka and PW2 Madhukar Lilka. Therefore, the learned advocate

appearing for the appellant submitted that the appeal deserves to

be allowed.

5. On the other hand, the learned APP appearing for the

Respondent - State, invited the attention of this Court to the

evidence and findings recorded by the trial Court and submitted

that the trial Court has properly appreciated the evidence on

record and has reached to a correction conclusion.

6. The prosecution had examined in all 8 witnesses. PW1

Suvarna Subhash Lilka is the first informant and the daughter of

Apeal.747.2013 (R).doc

the deceased. PW2 Madhukar Babu Lilka, is the paternal uncle of

the first informant. PW3 Vishnu Ganapat Panchalkar is a panch

witness. PW4 Anil Arjun Wavre is the husband of Kalpana Lilka,

whom the first informant had made a telephone call, when she

noticed the deceased with blood and head injuries. PW5

Dr.Manoj Balkrushna Shinde is the medical officer, who had

performed the postmortem on the body of the deceased PW6

Nisha Deepak Chaudhary is a panch witness. PW7 Harinarayan

Shivdarshan @ Bachan Shukla, is a panch witness and PW8

Nagesh Baburao Dhone is the Investigating Officer.

7. The material witnesses are PW1 Suvarna Subhash Lilka,

PW2 Madhukar Babu Lilka and PW5 Dr.Manoj Shinde. PW1

Suvarna Subhash Lilka is the first informant and the daughter of

the deceased. She had deposed that after the death of her father

Subhash, her mother Lalita got married with the appellant from the

same village. She used to reside at her deceased father's house

with her grandmother Parvati. She stated that her house and the

house of her mother were in proximity. She used to visit her

mother at different times. She had stated that her mother was a

labourer and the appellant used to remain at home. She had

Apeal.747.2013 (R).doc

stated that her mother Lalita and the appellant used to consume

alcohol and quarrel with each other. The appellant used to beat

Lallita on account of her refusal to give him money. PW1 had

stated that on the fateful day, she had gone to the weekly bazar at

Vangaon and returned to her home at about 2 to 3pm. Thereafter,

she went to meet her mother Lalita. At that time, she had noticed

that her mother had bleeding injuries on both her cheeks and she

was lying inside the house. She tried to wake her up but she was

immobile. Therefore, she called her uncle Madhukar, who came in

the night at 8pm. Thereafter, she had lodged the police complaint.

PW1 was crossexamined, wherein she had stated that her

mother was a drunkard and used to lie on road in breed condition

at times. She had stated that she did not know whether the

appellant used to go to work in MIDC.

8. PW2 Madhukar Babu Lilka is the paternal uncle of the first

informant. He had deposed that after the death of his brother i.e.,

Subhash Lilka, his wife i.e., the deceased, got married with the

appellant. He had stated that both the appellant and the deceased

used to drink liquor and under the influence of liquor, used to

quarrel with each other. On the date of the incident, he had gone

Apeal.747.2013 (R).doc

outside the village when he received a phone call from the first

informant informing him that Lalita was not getting up. Then, he

visited the house of the deceased and found that the deceased

was lying and was having injury over her head. He had noticed

that Lalita was dead and blood was found around her. Thereafter,

he had stated that they went to the police station and Suvarna

lodged the complaint. On the next day, the police had called him

and recorded his statement.

In the cross-examination, PW2 had sated that the deceased

Lalita was lying over the road. He had stated that the deceased

used to lie over the road in breed condition and some times, she

was required to be picked up from the road to be taken back to her

home. He had also stated that the appellant used to go to work at

MIDC.

9. It appears that the entire prosecution case rests upon the

evidence of PW1 and PW2 and also the medical officer - PW5

Dr.Manoj Shinde. PW5 Dr.Manoj Shinde, who was working as

medical officer at the relevant time at Tarapur Primary Health

Center, was examined by the prosecution. It is stated that during

his examination, he found surface wounds as mentioned in column

Apeal.747.2013 (R).doc

17 of the postmortem report. He also found fracture on the right

side of the chest of the victim in column 18 of the postmortem

report. He further opined that the injuries mentioned in columns 17

and 18 are ante-mortem. The said injuries can be caused by blow

given by hard substance. He further stated that the said injuries

can be caused by wooden log.

During his cross examination, he stated that the victim

may have died twelve hours prior to his conducting

postmortem. In the stomach of victim, he found alcohol. He

further stated that liver of an alcoholic person becomes

weak. The liver cannot be ruptured by a slight blow. The ribs

can be fractured as in the present case even by a fall but it

depends upon how the person falls and with how much force

he or she falls and also on a substance on which he or she

falls. There was no open injury over the chest where the ribs

were fractured. There is simply a contusion.

10. The evidence of the medical officer unequivocally indicates

that the victim died a homicidal death. However, at the same time,

the report does not rule out the possibility of injuries if victim falls

on the ground or on hard surface.

Apeal.747.2013 (R).doc

11. If the evidence of PW1 and PW2 is considered in its entirety,

nowhere they have stated that within the proximate time of death

of victim, the appellant-accused was present in the house or

nearby the house or they saw him going out of the house. The

prosecution utterly failed to establish the presence of the accused

at the spot of incident or nearby the spot of incident.

12. It is to be noted that the panch witnesses, PW3 Vishnu

Ganapat Panchalkar and PW6 Nisha Deepak Chaudhary had

turned hostile.

13. We have carefully perused the findings recorded by the trial

Court and are surprised to note that in absence of evidence on

record showing the presence of the accused at the spot of incident

or nearby spot of the incident within the proximate time of death,

relying upon the contents of FIR, the trial Court proceeded to hold

that the appellant was present in the house at the relevant date

and time of the incident. It is unfortunate that the trial Court

misguided itself by relying upon the FIR when the said FIR cannot

be read in its entirety as part of the evidence. At the most, the

contents of FIR can be confronted to the informant during the

course of cross examination. The trial Court has wrongly invoked

Apeal.747.2013 (R).doc

provisions of Section 106 of Indian Evidence Act, 1872 and

reached to the wrong conclusion that it was for the accused to

explain how and in which circumstances, the victim died in the

house. As already discussed, there was no question of shifting

onus on the accused when the prosecution utterly failed to prove

the presence of the accused at the spot of incident or nearby spot

of incident at the relevant date and time.

14. In that view of the matter, in our considered view, this is a fit

case wherein the impugned judgment and order dated 21 st June,

2013 passed by the learned Sessions Judge, Palghar in Sessions

Case No. 35 of 2011 deserves to be set aside and the appellant

deserves to be set at liberty. Hence, we pass the following order:-

ORDER

i. The appeal is allowed.

ii. The impugned judgment and order dated 21 st June,

2013 passed by the learned Sessions Judge, Palghar in

Sessions Case No. 35 of 2011 is hereby quashed and set

aside.

Apeal.747.2013 (R).doc

iii. The Appellant shall be set at liberty forthwith in case he

is not required in any other case.

iv. The appellant be released on his executing P.R. bond

of Rs.10,000/- for a period of one month. The appellant is

further directed to comply with the provisions contained in

Section 437A of the Code of Criminal Procedure, 1973 and

furnish bail of Rs.10,000/- with one surety to the satisfaction

of the concerned trial Court within the period of one month

from the date of his release from the jail.

15. The appeal stands disposed of accordingly.

      (S.P. TAVADE, J.)                              (S.S. SHINDE, J.)