Dattatray Shankar Patil vs The State Of Maharashtra
2022 Latest Caselaw 2467 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.822 OF 2012

Dattatray Shankar Patil                                 ... Appellant
           Versus
The State of Maharashtra                                ... Respondent

                                 ....
Mr. Shailesh Kharat, Appointed Advocate a/w. Manas N. Gawankar, for
the Appellant.
Ms. M.M. Deshmukh, APP, for the Respondent-State.
                                 ....

                              CORAM : SMT. SADHANA S. JADHAV &
                                      SARANG V. KOTWAL, JJ.

RESERVED ON : 10th MARCH, 2022

PRONOUNCED ON : 11th MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The Appellant has challenged the judgment and order

dated 21.6.2012 passed by the Additional Sessions Judge, Vasai in

Sessions Case No.64/2010. The Appellant was convicted for

commission of offence punishable under Section 302 of the Indian

Penal Code and was sentenced to suffer life imprisonment and to

pay a fine of Rs.5,000/-; and in default, to suffer rigorous

imprisonment for one year. The Appellant was also convicted for

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commission of offence punishable under Section 201 of IPC and

was sentenced to suffer R.I. for three years and to pay a fine of

Rs.3,000/-; and in default to suffer R.I. for six months. The

Appellant was given set off for the period during which he was an

under-trial prisoner. The substantive sentences were directed to

run concurrently.

2 Heard Shri Shailesh Kharat, learned counsel appointed

for the Appellant and Smt.M.M. Deshmukh, learned APP for the

State.

3 The prosecution case, in brief, is as follows:

The Appellant was suspecting character of his wife

Mangala. They had a son from their marriage. The Appellant and

Mangala had got married on 26.5.2003. At the time of incident i.e.

on 5.2.2010, Mangala was four month's pregnant. Their son Omkar

was about five years of age. It is the prosecution case that the

Appellant was suspecting Mangala's character and was even

disowning the paternity of their son. In the night between

4.2.2010 to 5.2.2010, he committed murder of Mangala by

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strangulating her with an odhani. He also committed murder of

Omkar by throttling Omkar. On some information, the police came

to his flat about 8.00 a.m. on 5.2.2010. When the police and the

neighbours entered his flat, they found that both the dead bodies

were lying on the floor. One of the neighbours gave a complaint,

which initially was recorded as accidental death report. In the

meantime, Mangala's father was informed. He came there. He

expressed suspicion against the Appellant and he lodged his own

FIR. The Appellant was arrested on 7.2.2010. The investigation

was carried out. Blood was found in the nail clippings of Omkar

and the Appellant. The blood group could not be determined. The

investigation was carried out by recording statements of witnesses

and carrying out various panchnamas. At the conclusion of

investigation, the charge-sheet was filed. The case was committed

to the Court of Sessions. The Appellant faced the trial as the sole

accused and at the conclusion of the trial, he was convicted and

sentenced as mentioned earlier.

4 In support of its case, the prosecution examined eighteen

witnesses as follows :

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• PW-1 Maruti Varekar was Mangala's father. He had lodged

the FIR, which is produced on record at Exhibit-18.

• PW-2 Arjun Varekar was brother of the deceased.

• PW-3 Gautam Ahire and PW-4 Anand Tandel were the

panchas for inquest panchnamas.

• PW-5 Prithviraj Shinde was a neighbour. He had given his

accidental death report.

• PW-6 Chandrakant Gaidhane was a pancha for the arrest

panchnama.

• PW-7 Mahendra Jaiswal and PW-9 Laxmi Jaiswal were other

neighbours.

• PW-8 Anant Kulkarni had conducted the postmortem

examination of both the dead bodies.

• PW-10 Vallukaran Anthory was a pancha for seizure of the

Appellant's baniyan and towel.

• PW-11 Mithun Rawat was a pancha for taking specimen

handwriting of the Appellant.

• PW-12 Kamalakar Kumawat was a Police Officer who had

gone to the Appellant's building at about 5.00 a.m. but he had

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not actually gone to his flat.

• PW-13 Manish Thakkar was a pancha for seizure of the

clothes of the deceased.

• PW-14 Bhavarlal Chavhan was a photographer, who had

taken photographs at the spot and of the dead bodies.

• PW-15 Dr. Janardhan Bansode had examined the Appellant

for his injuries.

• PW-16 Deepak Pandit was examined as an handwriting expert

in respect of a chit found with the Appellant.

• PW-17 API Bharat Chaudhary had conducted the

investigation.

• PW-18 ASI Somnath Malich had recorded the accidental death

report given by PW-5.

5 The defence of the Appellant was of total denial. He also

took up a specific defence of alibi. According to him, he had slept in

the house of a friend at N.M. Joshi Marg, Mumbai and he was far

away from Virar, where the incident had taken place. When he had

gone to his house in the morning he had discovered the dead

bodies.

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6 After recording the evidence and statements of the

accused, the learned Judge had heard both the sides. He then

passed the impugned judgment and order.

7 Learned counsel for the Appellant submitted that the case

is purely based on circumstantial evidence. The incident is

unfortunate but the Appellant was not in the house when the

offence had taken place. There are strong indications that Mangala

herself had committed Omkar's murder by throttling and then had

hanged herself. A blade of fan from where she was hanging is bent

and thus her body was on the floor.

8 He submitted that there is no evidence to show as to who

had informed the police and as to how they came to the Appellant's

flat at about 8 O'Clock in the morning on 5.2.2010. He submitted

that the postmortem examination and cross-examination of the

medical officer show that, there is a strong possibility that it is a

case of suicide by hanging committed by Mangala. The conclusion

of the Medical Officer that Mangala's death was because of

strangulation is not correct.

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9 On the other hand, learned APP submitted that the

prosecution has proved its case beyond reasonable doubt. Though

the case is based on circumstantial evidence, the circumstances are

strong and the chain of circumstances is complete. The evidence of

defence witness is too weak to be taken into consideration. His

evidence is not corroborated.

10 She submitted that the conduct of the Appellant is highly

suspicious. On seeing the dead bodies he had not sought help from

any of the neighbours. The defence taken by him is also not

acceptable or probable. He has not explained as to how the dead

bodies were lying on the floor when he entered the flat. It is not

his case that somebody else entered the flat and had committed the

murder. The neighbours had heard that Omkar was crying in the

night at about 11.30 p.m. and at that time the incident had

occurred. The medical evidence is clear enough to show that

Mangala died because of strangulation and it was not a case of

suicide. The blood from the nails of Omkar and of the Appellant is

an important factor because there are signs of struggle on the

deceased Mangala as well as there are some injuries on the chest of

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the Appellant. Finding of blood on towel recovered from the

person of the Appellant is also an incriminating piece of

circumstance.

11 Before considering these submissions, it is necessary to

refer to the evidence on record. PW-1 Maruti Varekar is the father

and PW-2 Arjun is the brother of the deceased Mangala. Their

evidence is on the same point. They have stated that Managala had

married the Appellant on 26.5.2003. They had one son, named,

Omkar. He was about five years of age at the time of incident.

Mangala was pregnant when the incident took place. The

Appellant used to suspect her character and also used to deny

paternity of Omkar as well as of the fetus in Mangala's womb. PW-

1 had advised the Appellant not to harass Mangala. On 5.2.2010,

PW-1 got the information about Mangala's and Omkar's death. He

came to Virar. He saw the dead bodies. He saw the ligature marks.

He then lodged his FIR with the police. The FIR is produced on

record at Exhibit-18.

In the cross-examination, PW-1 has stated that he was not

aware as to whether Mangala was fed up because of the financial

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crunch.

12 PW-5 Prithviraj Shinde was a neighbour. He has stated

that at about 11.00 p.m. on 4.2.2010, he heard Omkar's shouts. He

himself, his wife and another neighbour Jaiswal went to the

Appellant's house and knocked the door but there was no response

and, therefore, they returned. On the next day, at about 8.00 a.m.,

they came to know about the death of Mangala and Omkar. He

went to the house of the Appellant and saw the dead bodies lying

in the kitchen. The police were present at the spot. There was

odhani around Mangala's neck. One blade of the ceiling fan was

bent. He gave this information to the police, which was reduced

into writing. It was treated as accidental death report, which is

produced on record at Exhibit-29.

In the cross-examination, he has stated that when he had

seen the Appellant, he was wearing shirt and pant. According to

Shri Kharat, this is an important admission. It rules out a possibility

that the Appellant was on his baniyan and towel when the police

and others came to the house. PW-1 deposed that he had told the

police about hearing shouts of Omkar at about 11.00 p.m., but, he

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could not explain why this fact was not mentioned in the police

statement.

13 PW-6 Chandrakant Gaydhani was a pancha for the arrest

panchnama. He has produced that panchnama at Exhibit-31. It

was carried out between 8.30 p.m. to 9.00 p.m.. According to him,

there were abrasions on the Appellant's chest and shoulder. One

chit was also recovered from the Appellant. It was marked as

Article-A. In that chit, the Appellant had mentioned that if

anything happened to him, Managala and other named persons in

that chit should be held responsible. The prosecution had

examined the handwriting expert in that behalf. The Appellant's

specimen handwriting was taken and it is the prosecution case that

it was written by him. The chit does show that the relationship

between husband and wife was not cordial.

14 PW-7 Mahendra Jaiswal and PW-9 Laxmi Jaiswal were

the neighbours of the Appellant. Both of them have deposed that at

about 11.00 p.m. to 11.30 p.m. on 4.2.2010 they heard the shouts

of Omkar. They went there. They knocked on the door but there

was no response and they returned. PW-9 has further deposed that

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she had gone to the flat of the Appellant in the morning and had

seen the dead bodies as was narrated by PW-5.

15 One of the most important witnesses in this case is the

Medical Officer Dr. Anant Kulkarni, who was examined as PW-8.

Much depends on his opinion in this particular case. As far as the

other witnesses are concerned, they are mostly regarding the other

investigation part and about the chit. The most important aspect in

this case is whether Mangala had died because of suicide or

because of strangulation. There is no dispute that Omkar died due

to throttling.

16 Learned counsel for the Appellant submitted that

Mangala could have committed Omkar's murder and then could

have hanged herself. On the other hand, the prosecution case is

that the Appellant murdered both of them. Therefore, everything

depends on whether Mangala had committed suicide or whether

she was murdered. Before referring to the injuries suffered by

Mangala, the injuries suffered by Omkar can be noted. He had

suffered two contusions on the throat and neck and the cause of

death was mentioned as death due to asphyxia due to throttling.

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17 As far as the injuries on Mangala are concerned, they are

as follows :

"1. There were three abrasions on the left side of face. One on left nostril and the two 1 cm from each other in triangular shape. Its colour was reddish brown. All three abrasions were of size 2 mm x 1 mm.

2. There was abrasion 2 x 1 mm sized ½ cm. Above ligature mark on left side of neck. Its colour was reddish brown.

3. Abrasion on left side of chest 1 cm. above x mid point of left clavicle x sized 2 and ½ mm. X 1 mm. Its colour was reddish brown.

4. Abrasion on right side of the neck at right end of ligature mark. Size 3 mm x 2 mm. Its colour was reddish brown.

5. Ligature marks size 16 cm x 5 cm x ½ cm, 1 cm below hyoid bone transverse, upper and lower borders show subcutaneous. Its colour was reddish blue. Injury Nos.1 and 2 were simple in nature while injury No.5 was dangerous injury. Injury Nos.1 to 4 were caused due to semi sharp object while injury No.5 was due to blunt object. All the injuries No.1 to 5 were within 12 to 24 hours of examination. All the injuries were ante- mortem injuries."

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. On internal examination, following injuries were found :

"On internal examination, it was found that Hyoid bone greater cornu was fractured. There were two contusions on right side of neck muscles and while three on left side of neck muscles below ligature marks near thyroid cartilages. Both pulmonary walls show ptechial haemorrhage...."

18 PW-8 has clearly opined that the cause of death of

Mangala was strangulation. He was cross-examined mostly by

referring to Parikh's Medical Jurisprudence. He denied the

suggestion that Mangala's death was due to suicide. Besides this,

there was nothing much in the cross-examination. In this context,

therefore, there is no reason to discard the opinion of PW-8 that

Mangala died because of strangulation. It was not a case of suicide.

Modi's 'Medical Jurisprudence and Toxicology', 26 th Edition, 2019,

at Page Nos.526 and 527 gives various indications for strangulation

and notes the difference between "strangulation" and "hanging".

The important indications are that strangulation is mostly

homicidal. Scratches, abrasions, fingernail marks and bruises on the

face, neck and other parts of the body are usually present. This is

the case as far as Mangala is concerned. There were abrasions on

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the face, neck and chest. There was also fracture of Hyoid bone,

which is another indication of strangulation. Thus, the prosecution

has sufficiently proved that Mangala had died because of

strangulation and that it was a homicidal death. Therefore, the

defence theory that Mangala throttled Omkar first and then

committed suicide is not correct. Though there is blood found in

the nails of the Appellant and Omkar, in the absence of blood

grouping, we are not placing much reliance on this circumstance,

but, the fact remains that there were signs of struggle as indicated

by the abrasions on Mangala as well as some abrasions on the

Appellant himself.

19 In that context, PW-15 Dr. Janardan Bansode had

examined the Appellant after his arrest. He had found abrasions

over chest and back of the shoulder of the Appellant caused by

nails. There were two nail marks found on the right hand surface.

There was swelling over his right thumb. Thus, there are clear

signs of struggle found on both Mangala and the Appellant.

20 There was blood found in the nail clippings of Omkar as

well. These all are seriously incriminating circumstances against

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the Appellant.

21 In this context, the evidence of defence witness needs to

be considered. He was DW-1 Abaji Patil . He was residing at N.M.

Joshi Marg, Mumbai. He knew the Appellant as both of them came

from the same village Rile, District Sangli. According to him, on

4.2.2010 the Appellant came to his house at about 1.00 p.m.. He

told this witness that he was not feeling well. He took some

medicine and went to sleep. The Appellant stayed with this witness

for the night and left at around 5.15 a.m. to 5.30 a.m. on the next

morning. The Appellant was a resident of Virar.

In the cross-examination, he admitted that he came to the

Court with the Appellant and that the Appellant had told him that

he had to depose before the Court. He could not tell which

medicine the Appellant took. He did not inform Managala about

the Appellant's stay with him. According to him, one Police Officer

Pawar told him to give his version only before the Court. DW-2 did

not take any steps to approach superior police officer making

complaint about not recording of his statement.

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22 The Appellant in his written statement had stated that he

had taken half-day leave on 4.2.2010, but, nobody from his office was

examined. He has also stated that he had informed Mangala on phone

regarding his stay with DW-1, but, no call record was produced.

23 We find that the evidence of DW-1 is very weak. There is

nothing to show that the Appellant usually used to stay with him. The

Appellant has not examined anybody from his office to show that he had

taken half-day leave. He has also not produced on record anything to

show that he did actually call Mangala about his not returning home for

the night. DW-1 was admittedly his friend and had deposed at the

Appellant's instance.

24 We do not find any truth in the Appellant's defence. Even

otherwise, his defence does not explain his conduct. He has stated

in his statement under Section 313 of Cr.P.C. that he reached his

house at 7.30 a.m. He opened the door with his keys. He saw the

dead bodies lying in the kitchen floor. He then contacted his

relatives at Battis Shirala, District Sangli, who in turn, informed

Mangala's parents. At about 7.45 a.m. he informed about the

incident to Virar police station. His conduct does not appear to be

natural. When he discovered that his wife and son were lying on

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the floor, he did not seek immediate help from the neighbours and

did not try to make efforts firstly to see whether they were alive

and then to try to give them some treatment. He did not tell any of

the neighbours. It is not his case that he was on inimical terms

with any of his neighbours. He made a few phone calls instead.

This conduct, we find to be strange and unusual. Though the

Appellant has blamed the police officers for the injuries caused to

him, his version is not acceptable. There were signs of struggle as

mentioned earlier. It is not his case that some third person could have

entered the house and could have committed the murder or that somebody

else had a key to their house. Both the dead bodies were lying inside

the house and only the Appellant could access the flat. Nobody had

seen him returning home in the early morning. Nobody is

examined, either by the prosecution or by the defence, in that

behalf. Therefore, the prosecution has proved that the Appellant

was in his house and had committed this offence in the night itself.

25 Thus, taking overall view of the matter, it is clear that the

prosecution has proved its case beyond reasonable doubt. The

Appellant is rightly convicted and sentenced. The Appellant caused

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murder of his pregnant wife and innocent son. The prosecution has

sufficiently established this fact. Therefore, we are not inclined to

interfere with the judgment and order passed by the trial Court.

The Appeal is dismissed.

26 We place on record our appreciation for the efforts taken

by learned counsel who is appointed for the Appellant as well as

the learned APP. The appointed Advocate shall be paid his fees as

per the Rules.

                           (SARANG V. KOTWAL, J.)                  (SMT. SADHANA S. JADHAV, J.)

PRADIPKUMAR
PRAKASHRAO
DESHMANE               Deshmane (PS)

 Digitally signed by
 PRADIPKUMAR
 PRAKASHRAO
 DESHMANE
 Date: 2022.03.11
 18:19:09 +0530




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