Bombay High Court
Sanjay @ Sanjeev Hanmant Nikam vs The State Of Maharashtra on 9 February, 2022
Bench: Prasanna B. Varale, N. R. Borkar
DINESH J-cr-apeal-621-98.doc
SADANAND
SHERLA
Digitally signed by
DINESH SADANAND
SHERLA
Date: 2022.02.09
14:57:57 +0500
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 621 OF 1998
Sanjay @ Sanjeev Hanmant Nikam
Age 27 years, Occ. Service
R/o. Urul (Polachiwadi), Taluka Patan
Dist. Satara ..Appellant
Vs.
The State of Maharashtra
(to be served through the
learned Public Prosecutor
High Court (A.S.), Bombay) ..Respondent
-------
Mr. H.S. Venegaonkar a/w. Mr. Saurabh Kshirsagar for the
Appellant.
Mrs. M.M. Deshmukh, APP for the Respondent - State
-------
CORAM : PRASANNA B. VARALE &
N.R.BORKAR, JJ.
RESERVED ON : 20.07.2021.
PRONOUNCED ON : 09.02.2022.
JUDGMENT (PER: N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and
order dated 13.07.1998 passed by Additional Sessions Judge,
Satara in Sessions Case No. 190 of 1995. By the impugned
judgment and order, the appellant who was accused before
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the trial court, has been convicted for the ofence punishable
under section 302 of the Indian Penal Code (for short 'IPC') and
sentenced to sufer R.I. for Life. The appellant has also been
convicted for the ofence punishable under section 498-A of
the IPC and sentenced to sufer R.I. for one year.
2] The deceased Monika was the wife of accused. The
marriage of deceased was solemnized with the accused on
21.6.1991. The accused at the relevant time was serving in
Indian Army at Danapur, Patna in State of Bihar.
3] According to the prosecution, after marriage, the
deceased was treated well for two years and thereafter, the
accused used to beat the deceased under the infuence of
liquor and used to suspect her character.
4] The incident took place on 14.7.1995. According to the
prosecution few days prior to the incident the deceased, due
to harassment of the accused was brought to her parents'
house. In May, 1995, the accused came to his native place on
leave. According to the prosecution, the message was sent to
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the parents of the deceased to send the deceased for
cohabitation with the accused. According to the prosecution
after much reluctance the deceased was sent to the house of
accused for cohabitation at his native village Urul. According to
the prosecution, on the day of incident, the accused
committed murder of deceased by smothering her.
5] The report in relation to the incident was lodged. On the
basis of said report, the crime was registered against the
accused for the ofences punishable under sections 302 and
498-A of the IPC. On completion of investigation, the charge-
sheet was fled against the accused.
6] The accused was charged and tried for the aforesaid
ofences. As stated earlier, the trial Court, by the impugned
judgement and order, convicted the accused for the charges
framed against him.
7] We have heard learned counsel for the appellant/
accused and the learned APP for the respondent -State.
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8] The learned counsel for the appellant submits that the
trial court has erred in appreciating the evidence on record in
it's correct perspective and arrived at wrong conclusion. It is
submitted that the trial court has erred in holding that the
death of deceased was homicidal. It is further submitted that
the evidence in relation to alleged harassment to the deceased
is also not convincing. It is submitted that thus the impugned
judgment and order of the trial court needs to be set aside and
the accused needs to be acquitted of the charges framed
against him.
9] On the other hand, the learned APP for the respondent/
State submits that the trial court on the basis of evidence on
record was justifed in holding that the death of deceased was
homicidal. It is submitted that the trial court on the basis of
evidence on record was also justifed in convicting the accused
for the ofences alleged against him. It is submitted that
appeal, thus, needs to be dismissed.
10] According to the prosecution, the murder of deceased
was committed by the smothering her and it is the accused
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who smothered her. To connect the accused with the alleged
incident, the prosecution has examined PW-6 Atmaram B.
Nangare, the father of the deceased.
11] PW-6 has stated in his evidence that after marriage
deceased Monika was treated well for one year and thereafter,
the accused used to beat her under the infuence of liquor. The
deceased used to tell him about said harassment to her
whenever, she used to come to his house.
12] PW-6 has further stated that on 4.12.1993, the deceased
came to his house for delivery. She was at his house upto
March 1994. According to him, the accused thereafter took the
deceased with him to Patna for cohabitation. According to PW-
6, the accused was harassing the deceased at his house at
Patna and thus the deceased had written a letter to him. He
has stated that similar letter was written to his elder brother
Dhondiram (PW-5). Thereafter, they called the father of
accused to their village Marul. The brother-in-law of the
accused (husband of sister of accused) namely Mohan Patil
was also called.
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13] According to PW-6, he disclosed to the father of accused
that the life of his daughter is in danger and thus, they will
have to go to Patna. The father of accused told them that it is
not possible for him to go to Patna because of his old age,
however, he will send Mohan Patil (brother-in-law of the
accused) to Patna. PW-6 has stated that accordingly, Mohan
Patil and his elder brother Dhonidram (PW-5) were sent to
Patna and after 8 days, the deceased was brought to his
house.
14] According to PW-6, about 8 days thereafter the accused
came to his house and assured him that he would not ill-treat
the deceased and requested him to send the deceased with
him to Patna. He told to the accused that he will not send the
deceased to Patna and according to him, the deceased also
refused to go to Patna along with the accused. According to
PW-6, the accused got annoyed and walked away from their
house.
15] According to PW-6, in the month of May 1995, the
accused came to his native place, i.e., village Urul on leave.
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The father of accused requested him to send the deceased to
village Urul. According to PW-6, the deceased was thus sent to
village Urul for cohabitation. According to PW-6, during his visit
to the house of accused, his daughter was telling him that
there is danger to her life in the house of accused and the
accused would kill her.
16] PW-6 has stated that on 14.7.1995, he was informed that
Monika has expired and her dead body is lying in the hospital
of Dr. Vanarase at Malharpeth. Accordingly, he along with his
wife, his brother Dhondiram (PW-5), son of Dhondiram viz.
Dr.Raghunath and some more persons from his village went to
the hospital of Dr. Vanarase. He saw the dead body of his
daughter was lying on the stretcher in the hospital of
Dr.Vanarase. According to PW-6, froth was oozing from the
nose as well as from the mouth of the deceased. After seeing
the dead body, he realized that the death of deceased is not
natural. Therefore, he carried the dead body of deceased to
Patan for postmortem examination.
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17] According to PW-6, his elder brother (PW-5) went to Patan
Police Station and intimated to the police. According to him,
the Medical Ofcer told him that the deceased died due to
sufocation. Thereafter, he along with other family members
came to Umbraj Police Station and lodged the complaint.
18] In the cross-examination, PW-6 has admitted that his
daughter Monika was reluctant to go to Patna as it is far away
from their village. He has further admitted that when the
deceased went to Patna with the accused, at that time
instructions were given to her to send letter the moment she
reaches to Patna, however, he did not receive any letter from
his daughter at that time. He has further admitted that he did
ask the cause of death of the deceased to Dr.Vanarase,
however, he told him that it is not possible for him to give
opinion about the death of deceased.
19] PW-6 has further admitted that no talk took place
between him and the father of the accused in relation to the
harassment to his daughter. He has further admitted that he
did not state to the police at the time of recording his
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statement, that he called the father of accused to his house
and told him that the life of deceased is in danger, and she
need to be brought back from Patna.
20] According to PW-6, his elder brother Dhondiram (PW-5)
was sent to Patna after receipt of alleged letter written by the
deceased mentioning therein harassment to her at the hands
of the accused. It would be therefore, appropriate at this stage
to refer to the evidence of PW-5 Dhondiram Nangare.
21] According to PW-5, after receipt of letter written by the
deceased, he and the brother-in-law of the accused namely,
Mohan Patil went to Patna. They reached Patna on 11.1.1995
at about 10.30 p.m. According to PW-5, the deceased told him
in plain words that it is very difcult for her to live with the
accused because he may kill her at any time.
22] According to PW-5, they stayed at the house of accused
at Patna for two days and in the evening, he asked the
accused to send Monika with them, as her father is serious and
he wanted to see her. According to PW-5, the accused was
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reluctant to send the deceased with them. However, on
13.1.1994, they left the house of accused in his absence, along
with deceased and her son and came to their village.
23] In the cross-examination, PW-5 has admitted that on the
frst day, they went for sight seeing and that time, the accused
was with them. He has further admitted that on the frst day,
he did not disclose to the accused that the father of deceased
is serious. He has further admitted that on third day, when
they came to the house of accused after sight seeing, he
disclosed to the accused that he had come to take the
deceased to her parents' house. PW-5 has further admitted
that the accused accompanied them upto railway station,
Danapur, Patna.
24] The admission in the evidence of PW-5 that the accused
accompanied them upto the railway station belies his version
in examination-in-chief that on 13.1.1994, they left the house
of accused in his absence as he was reluctant to send the
deceased with them. According to PW-5, they stayed at the
house of accused for two days and even went for sight seeing.
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If really there would have been harassment to the deceased,
PW-5 would not have gone for sight seeing with the accused
and would not have stayed at the house of accused for two
days.
25] Coming back to the evidence of PW-6, the father of
deceased, he has admitted that in his statement to police he
has not stated that he called the father of the accused to his
house and disclosed to him that life of his daughter is in
danger, and she needs to be brought back from Patna. He has
further admitted that the deceased was reluctant to go to
Patna as it is far away from their village. Admittedly, PW-6 has
lodged the report only after coming to know the alleged cause
of death. He has admitted that no talk took place between him
and the father of the accused in relation to alleged harassment
to the deceased. Considering these facts and circumstances, it
is difcult to accept the evidence of PW-5 and PW-6 in relation
to the alleged harassment.
26] To prove the fact that the deceased died due to
smothering, the prosecution has examined PW-8
Dr.Chandrkant K. Yadav, the Autopsy Surgeon.
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27] According to PW-8, during postmortem examination, he
had noticed multiple scratches on the right cheek of the
deceased. Lower one third part of the nose was flled up. Skin
pilled of from lower 1/3 of nose upto the lower lip. Left pinna of
ear was elimetus and congested and fracture of nasal septum.
According to him, all the injuries were ante-mortem. The
condition of lung was severely congested. Larynx and trachea
contains froth and were congested. According to him, the
death was caused due to asphyxia due to sufocation.
28] PW-8 has admitted in his cross-examination that
Dr.Raghunath Nangare (son of PW-5) was junior to him when
they were studying in Medical College. He has admitted that
right from his college days, Dr. Raghunath Nangare is his
friend. He has further admitted that while conducting
postmortem, Dr.Raghunath Nangare was present there.
29] PW-8 has admitted that in case of death by sufocation
the following would be usual symptoms.
(i) eyes will be open;
(ii) there will be injuries around face and the nose;
(iii) tongue may be in between teeth, cynosed,
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elimaters;
(iv) there may be injury to the lower lip;
(v) there may be injury to the hills due to struggle; and
(vi) there may be injury to the back or dependent part.
30] PW-8 has admitted that when he examined the deceased
he did not notice struggle mark on body especially on hills,
back, buttock and nails. He did not notice any pressure marks
on the stomach, chest and legs of the deceased. He has stated
that he did not preserve viscera in the present case. He has
further admitted that the scratches which were on the cheeks
of the deceased were visible by naked eyes.
31] The evidence of PW-8 is not consistent with inquest
panchanama at Exhibit-22. According to the inquest
panchanama, there were no external injuries on the person of
the deceased including on the face of the deceased. According
to inquest panchanama, the eyes of the deceased were closed.
PW-8 has specifcally admitted that in case of death by
sufocation, the eyes will be open. It is also not understood as
to why the viscera was not preserved. There was no reason for
Dr. Raghunath who is the son of PW-5 to be there with PW-8
while he was conducting postmortem examination.
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Considering overall facts and circumstances, it is difcult to
hold that the death of deceased was homicidal. The trial Court
was, therefore, not justifed in convicting the
appellant/accused on the basis of evidence of PW-5, PW-6 and
PW-8. In the result, the following order is passed.
ORDER
A] Criminal Appeal is allowed.
B] The impugned judgment and order dated
13.07.1998 passed by the Additional Sessions Judge,
Satara in Sessions Case No.190 of 1995 convicting the
appellant/accused for the ofences punishable under
sections 302 and 498-A of IPC is set aside and he is
acquitted of the said ofences.
C] His bail bonds shall stand cancelled.
D] The fne, if any, paid by the appellant/accused, be
refunded to him.
[N.R.BORKAR, J.] [PRASANNA B. VARALE, J.]
Dinesh Sherla
