Ramesh S/O. Sadashiv Jawale vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 13793 Bom

                                      1                                       APEAL407.18.odt


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 : NAGPUR BENCH : NAGPUR.


                     CRIMINAL APPEAL NO. 407 OF 2018


 APPELLANT                     : Ramesh S/o Sadashiv Jawale,
                                 Aged about 61 years, Occu. Labour,
                                 r/o Ballarshah, Tah. Ballarshah,
                                 Dist. Chandrapur.

                                              VERSUS

 RESPONDENT                    : The State of Maharashtra,
                                 Through Police Station Officer,
                                 Police Station, Ballarshah,
                                 Dist. Chandrapur.

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           Mr. Mir Nagman Ali, Advocate for the appellant.
           Mr. V. A. Thakare, A. P. P. for the respondent /State.
 -----------------------------------------------------------------------------------------------------

                 CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

DATE : SEPTEMBER 24, 2021.

ORAL JUDGMENT [Per V. M. Deshpande, J.]

Being aggrieved by the judgment and order of conviction

in Sessions Case No. 103 of 2005, delivered by learned Additional

Sessions Judge, Chandrapur on 11.05.2018, the appellant is before

this Court.

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2. By the impugned judgment and order of conviction, the

appellant is convicted for the offence punishable under Sections 302

and 201 of the Indian Penal Code. For his conviction for the offence

punishable under Section 302 of the Indian Penal Code, the appellant

is directed to suffer imprisonment for life and to pay a fine of

Rs.10,000/- and in default to suffer rigorous imprisonment for one

year ; and for his conviction for the offence punishable under Section

201 of the Indian Penal Code, he is directed to suffer rigorous

imprisonment for seven years and to pay a fine of Rs.10,000/- and in

default to suffer rigorous imprisonment for six months. The learned

Judge has directed that both the sentences shall run concurrently.

3. We have heard Mr. Mir Nagman Ali, learned counsel for

the appellant and Mr. V. A. Thakare, learned Additional Public

Prosecutor for the respondent/State, in extenso. With the assistance

of both the learned counsel, we have not only gone through the

entire record and the evidence, but also the impugned judgment.

4. It was the submission of Mr. Ali, learned counsel for the

appellant that there is no eye witness in this prosecution case and the

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prosecution has not proved its case beyond reasonable doubt. He

submitted that on the day and time of the incident, the appellant was

not present in his house. He, therefore, submitted that the appeal be

allowed.

5. Per contra, Mr. Thakare, learned Additional Public

Prosecutor for the State has supported the impugned judgment and

order.

6. At the relevant time, Vitthal Bapurao Nivalkar (PW15)

was Assistant Police Inspector at Police Station, Ballarshah. He

deposed that on 10.06.2015, PW1 Deepak Jawale came to police

station and lodged his report. The same was taken down as per his

say. The oral report of PW1 Deepak is at Exh.18. On the basis of the

oral report, Vitthal Nivalkar (PW15) registered crime against the

appellant vide Crime No. 90/2015 for the offence punishable under

Section 302 of the Indian Penal Code. After registration of the crime,

he handed over the investigation to Devchand Singanjude (PW18).

7. As per the report (Exh.18), Deepak Jawale, nephew of

the appellant, discloses that on 10.06.2015 at 04.55 hours, he

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received a phone call from the appellant. Since, he was in sleep, he

could not pick up the said phone call. After he woke up at about

08.30 hours, he noticed missed call from the appellant. He,

therefore, called back to him at 9.00 hours. However, the said call

was not materialized. Therefore, he went to the appellant's house

and again made a phone call. That time he noticed that phone was

ringing inside the house. He, therefore, went near window and

peeped inside to notice that his aunt Savita (deceased) was lying on

the bed. There he also noticed blood from the window. He also

found that the house was locked form outside. He, therefore,

immediately went to the police and lodged his report.

8. In the report (Exh.18), informant Deepak has also stated

that the appellant was having illicit relations with one woman and

that was the cause of quarrel in between the couple. Similarly, the

appellant used to take suspicion over the character of the deceased

and used to assault her mercilessly. The appellant also used to keep

the deceased in confinement. Therefore, fade up with this ill-

treatment, their son Sachin Jawale (PW6) took his mother along

with him in the State of Orissa. The deceased was not ready to

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return back, however, due to intervention she came.

9. After the investigation was handed over to Devchand

Singanjude (PW18), he continued with the investigation. He, in

presence of panchas, drawn spot panchanama (PW24). PW2 Ganesh

Kokate was the panch for the same. Similarly, various articles were

also seized in presence of panch witness PW3 Shaikh Salim Sheikh

Ahmed. Exh.27 is the seizure memo under which a cell phone, a

diary, ATM Cards of Bank of Baroda and State Bank of India were

seized. Exh.29 is the seizure memo under which an agreement duly

notarized was seized. During the police custody remand, the

appellant gave his disclosure statement in presence of PW5 Kishor

Dakhore and agreed to show the place where he concealed the

weapon as well as his blood stained clothes. The admissible portion

of his memorandum statement is at Exh.34. Consequent upon his

disclosure statement, the appellant led police party to a place which

was an abandoned quarter near railway station and from where he

took out a heavy wooden stick having blood stains and the clothes

having blood stains. Those were seized and sealed on the spot. The

said recovery panchanama is at Exh.35.

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10. The appellant was arrested on 19.06.2015 under arrest

memo (Exh.110). The Investigating Officer after completion of the

other usual investigation including sending the document seized

under seizure panchanama (Exh.29) to the Handwriting Expert, he

also sent the seized muddemal property to the Chemical Analyser.

After completion of the investigation, he filed the charge-sheet.

11. From the entire evidence as it is brought on record, it is

clear that there is no eye-witness account. The Hon'ble Apex Court

in Sharad Birdhichand Sarda .vs. State of Maharashtra , reported in

(1984) 4 SCC 116 is the guiding lamp in respect of the decisions in

the cases solely based on circumstantial evidence. The Hon'ble Apex

Court has given following five guidelines :-

"a. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established ;

b. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty ;

c. The circumstances should be of a conclusive nature and tendency ;

d. They should exclude every possible hypothesis except the one to be proved, and

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e. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

12. It will have to be seen whether the prosecution has

proved that death of Savita was homicidal one.

13. After the dead body of Savita was sent to Rural Hospital,

Ballarshah, Dr. Mohan Akole (PW13) performed autopsy. The

Autopsy Surgeon has proved the post mortem report (Exh.63). He

found that the injuries on the dead body were ante mortem. He

mentioned following two injuries as external injuries in Column 17,

which are reproduced herein as under :

"i. Large contused lacerated wound on left side of forehead which is vertical, edges are everted, size 4 x 2 x 1 cm underlined bone fracture, approximate 3 cm with irregular lining.

ii. Contused lacerated wound over right frontal region just 2 cm lateral to middle aspect of frontal bone which is vertical irregular wound, size 6 x 2 x 1.5 cm underline bone fracture, approximate 4 cm, fracture is vertical and irregular."

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Dr. Mohan Akole (PW13) also found internal injuries to the brain. As

per the Autopsy Surgeon, death was caused to intra cranial

haemorrhage secondary to head injuries.

14. During the course of investigation, weapon query was

also made and the Autopsy Surgeon affirmed that wooden rod,

which was sent to him can cause the injuries as found in the post

mortem report.

In view of the opinion of the Doctor and the post

mortem report, there cannot be any opinion but that the death of

Savita was homicidal one.

15. The case in which only circumstantial evidence is

available, motive plays very important role. Now, let us examine

whether there exists motive in this prosecution case.

16. As per the first information report (Exh.18) and

evidence of PW1 Deepak, the appellant was having extra marital

relation with one Savita Kasote. Though, her name did not figure in

the first information report, his evidence also shows that he used to

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suspect fidelity of his aunt and under the influence of liquor he used

to beat the deceased. Fade with this, their son Sachin (PW6) took his

mother at his place in the State of Orissa.

17. Before considering the evidence of Sachin, it would be

useful to refer to the evidence of PW8 Sanjay Barhate. This

prosecution witness is the father of wife of Sachin Jawle (PW6). His

evidence would show that on 20.05.2015, just in proximity of the

offence, he had been to the house of the appellant in respect of death

anniversary of his mother. His evidence would show that after the

function was over, deceased informed him and other relatives that

the appellant under the influence of liquor used to beat her and also

used to raise suspicion over her character. Therefore, this

prosecution witness gave an understanding to the appellant. His

evidence would show that after 2-3 days of the function, his son-in-

law Sachin (PW6), son of the appellant, took deceased Savita with

him. His evidence further shows that thereafter the appellant and

other relatives used to call him every day making a request to bring

back the deceased to Ballarshah.

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18. Poonam Patil (PW9) is the daughter of the appellant.

She also corroborates evidence of Sanjay (PW8) in its entirety.

19. In the light of aforesaid evidence of two prosecution

witnesses, we wish to examine evidence of PW6 Sachin Jawle, son of

the appellant and the deceased.

20. Evidence of PW6 Sachin Jawle would show that as he

was transferred to the State of Orissa, he was staying there. On

20.05.2015, he came to Ballarsha for death anniversary of his

grandmother. His evidence would show that his father (appellant)

used to abuse his mother and used to harass her. He, therefore, took

his mother with him on 22.05.2015 to Orissa. He used to get

message through the brothers and sisters and other relatives of his

father for sending his mother back to Ballarshah. Even the appellant

also used to make phone calls requesting him to send the deceased at

Ballarshah. Evidence of Sachin (PW6) reveals that he was not

having any faith in his father and therefore, he asked his father to

execute an agreement in his favour wherein he should give an

undertaking that after returning of the deceased at Ballarsha, he will

11 APEAL407.18.odt

not cause any ill-treatment to her. Accordingly, the appellant

executed an agreement. The said was notarized in the office of

Notary Ms. Megha Bhale, Advocate (PW17). Evidence of Megha

Bhale, Advocate (PW17) would show that she notarized the

document (Exh.20) executed in between the appellant and his son

Sachin. In the Court, she had brought Notary Register (Exh.101) and

the agreement was found to be entered at Serial No. 713 on

01.06.2015. A photo copy of the said is available on record because

the original register was returned back to this witness after verifying

the original.

21. The Agreement (Exh.20) would show that the appellant

in clear terms had admitted that he used to beat his wife and used to

give ill-treatment to her. Therefore, there was a possibility of coming

to an end of their relations. Therefore, he gave an undertaking that

henceforth he will not give any type of ill-treatment. Not only that

even Sachin agreed to pay Rs.1,000/- per month for expenses.

22. From the evidence of these witnesses, it is clear that the

deceased was subjected to extreme cruelty during her stay at

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Ballarshah. The reason for the same was that the appellant was

having extra marital relation, addicted to liquor and taking suspicion

over character of the deceased. It is conclusively proved that due to

extreme harassment, son Sachin (PW6) was required to take his

mother with him in the State of Orissa and only after the pleadings,

requests made by the appellant to him, directly and through the

relatives, Sachin agreed to send his mother back to his father, but

before that he got the agreement executed from his father. In that

view of the matter, there cannot be any difficulty in accepting the

prosecution case that there was motive on the part of the appellant

to eliminate his wife.

23. There is another circumstance that the appellant was

lastly seen in the company of the deceased.

To prove said circumstance, the prosecution has

examined two witnesses, namely Rajesh Bhure (PW7) and Mahadev

Kadukar (PW11). From their evidence which is not challenged at all

that they are the neighbours of the appellant. Their evidence also

throw light on the aspect of strained relation between the appellant

and the deceased and also the fact that Sachin (PW6) was required

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to take his mother along with him in the State of Orissa.

24. Evidence of PW7 Rajesh and PW11 Mahadev would

show that on 09.06.2015, in the night, they noticed the appellant

sitting in his house and the deceased was also present. As per the

evidence of Rajesh (PW7), he noticed the appellant smoking

cigarette by sitting in the balcony. Their evidence would show that

after half an hour, the deceased came to close the main gate and

went inside. It is clear that after 11.00 p.m. deceased Savita was not

seen outside the house or anybody took entry inside their residential

house. Thus, it is conclusively proved that at 11.00 O'clock in the

night, the appellant was seen in the company of deceased wife. On

the next day, as per the evidence of Deepak (PW1), in the early

morning when he reached to the house of the appellant, the house

was found locked from outside. Evidence of these two independent

witnesses would show that after the intimation was given to police,

police came and broke open the lock. At that time, the appellant was

not found in the vicinity. It is, therefore, clear that after the assault

was made, the appellant after putting lock from outside fled away.

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25. After arrest, the appellant was medically examined.

PW12 Dr. Subhash Kumbhare received requisition (Exh.58) from

Police Station, Ballarsha for collecting blood sample of the appellant.

Accordingly, the blood was collected. The blood was duly seized and

sealed in presence of panch witnesses.

26. Chemical Analyser's report shows that on the under

garment and baniyan of the appellant human blood was noticed.

Similarly, wooden log was also found to be stained with human

blood. In addition to the Chemical Analyser's report, there is DNA

report (Exh.124). From the evidence, it is clear that on 10.06.2015,

police seized one empty cigarette packet and two burned cigarettes

from the house of the appellant in presence of PW2 Ganesh. The

Investigating Officer (PW18) sent the said half burnt cigarettes for

chemical analysis. Exh.124 DNA report shows that DNA extracted

from cigarette butts and blood of the appellant are found to be

identical and from one and the same source of male origin i.e.

appellant. Thus, evidence of neighbours that they noticed the

appellant smoking cigarette in balcony stands corroborated. Further

the DNA report shows that blood noticed on the clothes of the

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appellant and DNA profiling, it is of the deceased.

27. In the statement recorded under Section 313 of the Code

of Criminal Procedure, the appellant, took a plea that on the day of

the incident at 9.00 O'clock he had been to Nagpur by railway and

after staying at Nagpur when he came back to Ballarshah, he was

arrested. Thus, the appellant has taken a plea of alibi. Therefore, it

was expected to show that he was at Nagpur. According to his

defence, he had been to Nagpur by railway, however nothing is

placed on record in the form of railway ticket etc. to prove his plea of

alibi. Thus, the appellant has taken a false plea, which would be an

added coupling to the chain.

28. After going through the impugned judgment, we are of

the view that the learned Judge of the trial Court has appreciated

each and every circumstance in its correct perspective and rightly

found that all the circumstances cumulatively complete the chain

which points out finger of guilt towards the appellant. Resultantly,

we pass the following order :

                                   16                          APEAL407.18.odt


                                       ORDER

          1.       The Criminal Appeal is dismissed.

2. The judgment and order of conviction passed by the

learned Additional Sessions Judge, Chandrapur on

11.05.2018 in Sessions Case No. 103 of 2015, thereby

convicting appellant - Ramesh S/o Sadashiv Jawale for

the offence punishable under Sections 302 and 201 of

the Indian Penal Code, is hereby confirmed.

                          JUDGE                        JUDGE
 Diwale