Bombay High Court
Sanjay Vishwas Kengar vs State Of Maharashtra on 17 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
apeal-667.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.667 OF 2016
WITH
INTERIM APPLICATION NO.1829 OF 2021
Sanjay Vishwas Kengar
C/6388, Age - 38 years, Occ. -
Convict, Lodged at
K.C.P. Kalamba, Kolhapur. ... Appellant
V/s.
The State of Maharashtra
At the instance of Rajarampuri Police
Station. [C.R.No.114/2014] ... Respondent
-------------------
Mr. Ashish Satpute Advocate appointed for the Appellant.
Mr. Arfan Sait, APP for the Respondent - State.
---------------------
Digitally signed
CORAM : SMT. SADHANA S. JADHAV &
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
SARANG V. KOTWAL, JJ.
2021.09.17
13:41:29
+0530
JUDGMENT RESERVED ON : 13th SEPTEMBER 2021
JUDGMENT PRONOUNCED ON : 17th SEPTEMBER 2021
JUDGMENT : (Per Sarang V. Kotwal, J.)
1. The appellant has preferred this appeal against the
judgment and order dated 15 th July 2015 passed by the Additional
Sessions Judge - 2, Kolhapur in Sessions Case No.121 of 2014. By the
impugned judgment and order, the appellant was convicted for
commission of offence punishable under section 302 of the Indian
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Penal Code and was sentenced to suffer imprisonment for life and to
pay fine of Rs.2,000/- and in default to suffer RI for three months.
2. The prosecution case is that on 14 th June 2014 before 6.00
am, the appellant committed murder of his wife Aarti in their
matrimonial house at Kolhapur by giving a blow with a heavy stone
block used for grinding spices because he was suspecting her character.
3. Heard Mr. Satpute, learned counsel for the appellant and
Mr. Arfan Sait, learned APP for the Respondent - State. The
prosecution case is based on circumstantial evidence as there are no
eyewitnesses to the actual incident when the appellant had allegedly
given the fatal blow. The prosecution, in its support, examined 20
witnesses. The defence of the appellant was of total denial. He has not
examined any witness in his support. Besides 20 witnesses examined
in the Court, the prosecution has introduced important documents viz.
FIR, Panchanama, Post-mortem notes, etc. through these witnesses.
Prosecution Evidence
4. The prosecution evidence can be categorised and
summarised as under :-
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I] Relatives of the deceased Aarti who spoke about the motive
and the events on that particular day.
(i) In this regard, the prosecution has examined P.W. 2 -
Suman Hattikate. P.W.2 is mother of the deceased. She has stated that
her daughter Aarti was married with the appellant 12 to 13 years prior
to the date of incident. The deceased was residing with the appellant,
his father and sister at Kolhapur. P.W.2's other daughter Shital was
residing at Shastrinagar in Kolhapur. P.W.2 has stated that Aarti was
treated properly by the appellant for about 4 years. But thereafter, he
started suspecting her character and on that count, started assaulting
her. Aarti had disclosed this to P.W.2. This witness had tried to make
the appellant see reason and behave properly with Aarti. But the
situation did not improve. About 7 to 8 months prior to the incident,
the appellant had assaulted Aarti and therefore, this witness had taken
Aarti to Satara with her. Aarti stayed there for that entire period.
Appellant's mother came to Satara and convinced them that Aarti
would be treated properly and therefore, Aarti came back for
cohabitation with the appellant about 15 days before the date of the
incident. P.W.2 had come to the house of her other daughter Shital at
Kolhapur on 13th June 2014. In the evening, she had gone to the
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matrimonial house of the appellant and her daughter Aarti. At that
time, Aarti complained to her that the appellant was harassing her
even more and on the previous day he had tried to throttle her. She
informed P.W.2 that she was not willing to stay with the appellant.
P.W.2 tried to pacify her and promised to take her back to the parental
house on the next date. However, on the next date i.e. on 14 th June
2014 in the morning P.W.2 got a message that the appellant had
assaulted Aarti with a heavy stone block on her head. P.W.2
immediately rushed to their house and found Aarti lying in a pool of
blood. The appellant was not seen anywhere. P.W.2 then went to
Rajarampuri Police Station and lodged FIR. The FIR is produced on
record at Exhibit 14.
In her cross-examination, P.W.2 clarified that she received
the information at about 6.00 am and she reached the appellant's
house at about 6.15 am. She went to the Police Station at about 6.30
am. P.W.2 admitted that she was unable to tell the exact day and date
when Aarti had disclosed to her about ill-treatment suffered by her at
the hands of the appellant for the first time. According to this witness,
the appellant was doing centering work. The appellant and Aarti had
two sons. She denied the suggestion that Aarti was not interested in
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cohabiting with the appellant, she was not getting divorce from the
appellant and therefore, out of frustration she committed suicide. Her
deposition was quite consistent with her FIR which was immediately
lodged at 7.00 am on 14th June 2014 vide C.R.No.114/2014 at
Rajarampuri Police Station.
(ii) P.W.6 - Shital Kamble was sister of the deceased. She was
residing in Kolhapur. P.W.2 was staying with her when P.W.6's brother
Deepak informed them about the incident through a call on mobile
phone at 6.00 am. This witness accompanied P.W.2 to the spot of
incident. Rest of her evidence is on the similar lines of those of P.W.2.
The cross-examination was also on similar lines and nothing much was
elicited favouring the defence.
II] Neighbours :-
The most important witness in this context is P.W.5- Renuka
Karade. She was residing on the first floor of the building. The
deceased along with the appellant was residing on the ground floor.
She deposed that the couple was residing with their two sons and the
appellant's mother. She has stated that on some occasions, the
appellant used to consume alcohol. She has narrated that because of
the quarrel the deceased had gone to reside at Satara with her parents
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and had come back to Kolhapur about a month prior to the incident
and after that their relations were good. On 14 th June 2014, she had
gone to the house of the appellant and had enquired with the deceased
Aarti as to whether there was water supply from the Corporation's
pipelines. This witness used to fetch water from a water tap at the
ground floor which was located behind the house of the appellant.
Aarti had told her that water was not available till that time. After
sometime, when there was water supply, this witness came down. She
saw that the appellant was moving around that place. The appellant's
mother was washing utensils in front of their door. This witness has
deposed that the appellant's sister shouted loudly that the appellant
had assaulted Aarti with a grinding stone block on her head and had
run away. This witness rushed inside the house of the appellant and
saw Aarti lying in a pool of blood. She saw the grinding stone block
nearby. The appellant's mother came inside and asked others to take
Aarti to Hospital but Aarti had died on the spot.
In her cross-examination, this witness has stated that she
had a conversation with Aarti at about 4.45 am. Aarti's relations with
the appellant and his mother were good after Aarti had returned from
her parents' house. She has stated that, on one occasion, she had seen
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quarrel between the couple. She has further stated in the cross-
examination that she had seen the appellant wandering in the area at
about 5.45 pm and at that time, he was wearing black pant and white
half shirt. Water was available at about 5.15 am. She denied the
suggestion that the appellant's sister Geeta was not present on the date
of incident and that Geeta had not shouted about the appellant
assaulting Aarti. In her police statement she had not mentioned about
the water tap being located behind the house of the appellant.
III] Hostile witnesses and Relatives of the appellant-
(i) P.W. 4 - Sunita Dabhade was one of the neighbours. She
deposed that prior to 15 days of the incident, the deceased had come
to stay at Kolhapur for 4 days and before that she was residing with
her parents for about 7 to 8 months. She has deposed that at about
6.00 am on 14th June 2014 she heard some shouts from the house of
the appellant. She went there. She saw Aarti was lying in a pool of
blood and the grinding stone block was lying nearby. She has also
deposed that Geeta i.e. the appellant's sister was present there. She
tried to bring rickshaw but Aarti had already died. She denied the
suggestion that the appellant's mother Laxmibai was shouting that the
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appellant had assaulted the deceased and had run away. As she did not
support the prosecution case on this issue she was declared hostile. She
denied having stated before the police about Laxmibai i.e. the
appellant's mother shouting that the appellant had assaulted the
deceased. This particular portion from her statement was shown to her
and it was ultimately proved to the Investigating Officer vide Exh.48.
(ii) P.W. 7 - Anil Kasture had a grocery shop in the same area of
the appellant's house. He had opened his shop at about 4.45 am for
selling milk. He has deposed that, at about 5.00 am, the appellant had
been to his shop to buy cigarette but he has denied any knowledge
about the incident and he was declared hostile. This witness is not of
much importance as, in any case, he did not have any knowledge
about the incident and he had not seen or heard anything of special
significance.
(iii) P.W. 9 -Laxmibai Vishwas Kengar is the appellant's mother.
She has deposed that the appellant was doing some work using silver
and also was a mason. According to her, there was no problem
between the couple but she has admitted that Aarti was residing with
her mother for about 9 months at Satara and that Aarti had left the
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appellant's house against their wish. She denied the suggestion that
the appellant was suspecting her character. She stated that, on the
previous day of the incident, nobody had visited their house from
Aarti's side. On the day of incident, the appellant, this witness, Aarti
and Aarti's two sons were residing together. She stated that on the day
of incident, she had gone to collect garbage and when she returned,
she saw that Aarti was lying on the bed. She denied that the police had
recorded her statement or that she had stated before the police that
the appellant had assaulted Aarti with a stone and that she had
shouted loudly. On that denial, this witness was declared hostile. She
was confronted with her police statement and in particular, the
portions marked - "A" and "B" from her statement which were contrary
to her deposition. She denied those suggestions but those portions
were proved through the evidence of the Investigating Officer and
were marked at Exh.49.
(iv) P.W. 14 - Joti Deepak Patkar is the sister of the appellant.
She denied being present in the appellant's house at the time of the
incident. She was declared hostile. She was confronted with her
statements marked as "A" and "B". In those portions, she has spoken
about the incident and about her own shouts mentioning that the
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appellant had assaulted the deceased. However, she denied having
stated those portions but they were exhibited through the evidence of
the Investigating Officer and were marked at Exh.54.
(v) P.W.15 - Yash Kengar is 12 year old son of the deceased and
the appellant. His evidence was recorded on 4th June 2015. That means
at the time of incident, he was 11 years of age. He has not supported
the prosecution case. He has deposed that the appellant was treating
the deceased properly and the deceased herself was not behaving
properly. At the time of incident, he was sleeping and when he woke
up, the deceased was already lying with bleeding injury. He was also
confronted with certain portions of his statement in which he had
implicated the appellant. In fact, these portions which are exhibited
through the Investigating Officer at Exh.50 indicate that he was an
eyewitness to the actual incident.
IV] Various Panchas -
(i) P.W.1 - Ajit Majgaonkar was a pancha to the inquest
panchanama which was conducted between 7.15 am to 8.45 am. The
panchanama is produced at Exh.9/C.
(ii) P.W.3 - Imran Gadkari was a pancha for the spot
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panchanama which is produced at Exh.16/C. It was conducted
between 8.55 am to 10.15 am on 14th June 2014. The spot
panchanama makes a reference to the murder weapon i.e. the grinding
stone block having blood stains, broken bangles pieces and pool of
blood.
(iii) P.W.8 - Pradip Baranje was a pancha in whose presence
clothes of the appellant were seized at the police station. The
panchanama was produced on record at Exh.27/C. It was conducted
between 4.25 pm to 5.35 pm on 15th June 2014.
(iv) P.W.13 - Shyam Jadhav was a pancha in whose presence
the clothes of the deceased were seized.
(v) P.W.11 - was a photographer who had taken photographs of
the dead body of the deceased.
V] Important witnesses on the conduct of the appellant -
P.W.10 - Malutai Korane is an important witness in the
context of the case. Malutai was a relative of the appellant. She has
deposed that, on 14th June 2014, the appellant had come to her house
under the influence of alcohol. He told her that he had come from
Gangapur by walking from house of his maternal aunt. This witness
gave him dinner. He slept in her house. He left her house without
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informing her in the morning. In her cross-examination, she has stated
that the police had not recorded her statement. She denied other
suggestions.
VI] Medical Evidence -
P.W.12 - Dr. Gurunath Dalvi conducted post-mortem
examination. The post-mortem notes are produced on record at
Exh.35/C. The deceased had suffered the following injuries:-
(i) CLW of 3 x 3 x 1 cm over left ear at lower angle of ear;
(ii) Contusion of 6 x 4 cm over right tempero-parietal region of
scalp;
"The cause of death was mentioned as head injury."
P.W.12 - Dr. Gurunath Dalvi has deposed that the injuries
were possible by the stone block and that they were possible because
of one stroke. He admitted that the injuries were possible because of
use of Article 3 i.e. stone block which was produced. He has accepted
in the cross-examination that the injury no.1 was possible due to fall
because of giddiness and that injury was possible in the case of suicide.
VII] Police witness conducting investigation-
(i) P.W.16 - PSO Vijay Ghatge was on duty at the police
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station. He has deposed that the appellant's mother came to
Rajarampuri Police Station at 6.20 am and stated that the appellant
had given a blow with stone block on the head of the deceased and
had absconded. He had taken a station diary entry to that effect. He
sent PSI Badiwale and others to the spot. At about 6.30 am, P.W.2 and
P.W.6 had come to the police station to lodge the FIR. He had recorded
the FIR and had made an entry in the station diary. He has produced
the station diary entry recording the information given by the
appellant's mother Laxmibai at 6.20 am. The entry is produced at
Exh.43/C.
(ii) P.W.17 - Police Constable - Audumbar Kore had carried the
articles to the C.A. Laboratory.
(iii) P.W.18- Bajrang Badiwale conducted initial part of the
investigation. Under his supervision the inquest panchanama and the
spot panchanama were prepared. The photographs were also taken.
(iv) P.W.19- P.S.I. - Sharad Mali had recorded the statements of
various witnesses and he has proved the contradictions from the
statements of various witnesses who were declared hostile as
mentioned earlier.
(v) P.W.20- Police Naik - Avinash Gavade had produced a N.C
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dated 16th October 2012 lodged by the deceased against the appellant
about the abuses and assault suffered by the deceased at the hands of
the appellant on 16th October 2012. The entry of this N.C. is produced
on record at Exh.61/C.
Besides this evidence, C.A. report produced on record
shows that full pant seized from the appellant showed presence of
blood of "O" group on left leg, front and back lower portion of the
pant. The blood group of the deceased was found to be "O". The
appellant's own blood group was not found as the samples were
unsuitable for grouping. This in short, is the prosecution evidence.
As mentioned earlier, the defence of the appellant was of
total denial. He has not taken up any specific defence. In his statement
under section 313 of Cr.P.C., he has stated that on the day of incident,
he was not present in the house and a false case was filed against him.
He stated that the deceased was denied divorce and therefore, she had
threatened to commit suicide.
SUBMISSIONS
5. Mr. Ashish Satpute, learned counsel for the appellant
submitted that it is the case based purely on circumstantial evidence
and the chain is not complete. None of the circumstances by itself is
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proved by the prosecution beyond reasonable doubt. The motive is not
established. In the examination under section 313 of Cr.P.C. the
relevant questions regarding evidence against the appellant are not put
to him. The appellant was not seen in the company of the deceased
prior to the incident. The evidence about the appellant moving around
outside the house is not incriminating because it was his own house
and it was not unnatural that the witness had seen him outside his
house. Most of the witnesses have turned hostile.
6. On the other hand, learned A.P.P. Mr. Arfan Sait submitted
that, though many of the witnesses have turned hostile, they were the
relatives and neighbours of the appellant. Therefore, the appellant
cannot derive benefit of these witnesses not supporting the
prosecution. There were several circumstances against the appellant
which formed a complete chain. The appellant was not in his house on
14th June 2014. That, by itself is incriminating. No explanation is
offered by him. If he was present and if he had not committed offence,
the natural conduct for him, would have been to take the deceased to
the Hospital or to inform the Police. The motive is sufficiently
established. The suggestion that it was a case of suicide is not
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acceptable as it is clearly a case of homicidal death as is revealed from
the medical evidence. The appellant has not discharged the burden on
him to establish his defence which was strictly within his knowledge as
per section 106 of the Indian Evidence Act.
REASONING
7. We have considered these submissions. Following are the
circumstances against the present appellant :-
(i) Motive;
(ii) Assault has taken place inside the matrimonial house of the
appellant/ deceased;
(iii) The incident had occurred at early hours inside the house;
(iv) The appellant did not turn up in his house throughout the
day but he stayed in his relative's place;
(v) The blood stains on his pant.
8. As far as motive is concerned, the evidence of the mother
and sister of the deceased i.e. P.W. 2 and P.W.6 is clear enough. Not only
these witnesses but even the other witnesses who have turned hostile
have admitted that the deceased has come to reside with the appellant
only 15 to 30 days before the incident and before that she was residing
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with her parents for about 7 to 8 months. This, thus, shows that their
relations were not cordial. Apart from that, the prosecution has
brought on record the record of N.C. complaint which was lodged by
the deceased herself against the appellant. Thus, the prosecution has
proved beyond reasonable doubt that the relations between the
appellant and the deceased were not good and that there is no reason
to discard the evidence of the mother of the deceased that the
appellant was suspecting character of the deceased.
9. The defence had tried to suggest through evidence of
appellant's mother that P.W.2 was not present on the previous day
however, the FIR was lodged by P.W.2 immediately after the incident at
about 6.45 am in the morning. Therefore, P.W.2's presence in Kolhapur
on the previous day and also on the date of incident cannot be
doubted. Thus, this particular circumstance is also proved beyond
reasonable doubt.
10. The informant was seen around his house at the time of
incident by P.W.5 - Renuka Karade. She was the one who had
immediately entered the house on hearing shouts. She had seen the
deceased lying in the pool of blood. This witness had met the deceased
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at 4.45 am. Both of them were waiting for supply of water. At 5.45 am
she had seen the accused outside the house. The incident occurred
around that time when she heard the shouts. P.W.5 is a natural witness
and she had given sufficiently reliable evidence against the appellant.
11. The deceased was found lying in a pool of blood in their
matrimonial house. Their sons were sleeping in the house. The
appellant's mother was washing utensils outside the house as per the
version of P.W.5 - Renuka Karade. Therefore, the burden was on the
appellant himself to explain about the incident because the deceased
was residing in the matrimonial house. The incident took place inside
the house. The appellant had not gone for his work. The incident had
occurred at early hours when the appellant was expected to be in his
house. The deceased had expressed apprehension against the appellant
on the previous day itself. The appellant had failed to discharge his
burden under section 106 of Indian Evidence Act. Though the mother,
sister, son and neighbour of the appellant have turned hostile, evidence
shows that Laxmibai - mother of the appellant had immediately visited
the police station and had informed about the incident. Though the
contents of the information are not admissible as she has not deposed
about them, the fact that she had gone to the police station and that
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the information was taken down in the station diary stands proved.
Subsequently, she had denied having gone to police station is a
circumstance which shows that this witness Laxmibai is trying to help
her son. The fact that she had gone to the police station to give some
complaint can be taken into consideration.
12. The subsequent conduct of the appellant is also
incriminating in that context. Evidence of P.W.10 - Malutai Korane is
important. As mentioned earlier, she has stated that on 14 th June 2014
the appellant had gone to her house in Kolhapur itself under influence
of liquor. He had stayed there, slept there and had left without telling
her. No explanation is offered as to why he has not gone to his own
house which was in Kolhapur itself.
13. The pant of the appellant was seized in presence of
panchas. It was sent for C.A. examination. The C.A. report shows that
it had blood stains of "O" group. The blood group of the deceased was
also "O". There is not much cross-examination on this aspect. No
explanation is offered by the appellant and hence, it is also an
incriminating piece of circumstance.
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14. The medical evidence also shows that the deceased had
suffered injuries on the head as mentioned earlier. The cause of death
was "head injury." Looking at the nature of injuries, it is quite clear
that it can only be homicidal death. There is no substance in the
submissions that it could be a case of suicide.
15. Considering all these circumstances together, we are
satisfied that the prosecution has proved each of the circumstances
beyond reasonable doubt. They formed a complete chain against the
present appellant and therefore, we are satisfied that the appellant has
committed this offence.
16. Based on this discussion, we do not find merit in this
appeal. The Appeal is dismissed.
17. Before parting with this judgment, we record our
appreciation of the efforts put in by both the learned counsel
Mr.Ashish Satpute and Mr. Arfan Sait, learned APP. Shri. Ashish
Satpute be paid fees for working out this appeal as per Rules.
(SARANG V. KOTWAL, J) (SMT. SADHANA S. JADHAV, J)
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