Nitu W/O. Rameshwar Jodiwale vs The State Of Maharashtra
2022 Latest Caselaw 10907 Bom

                                                Cri. Appln. No.3411/2022 with
                                                     Cri. Appln. No.3436/2022
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


              CRIMINAL APPLICATION NO.3411 OF 2022 IN
                  CRIMINAL APPEAL NO.727 OF 2022


 1. Rameshwar Chudaman Jodiwale
 2. Mukesh Chudaman Jodiwale                       ... APPLICANTS
          VERSUS
 The State of Maharashtra                          ... RESPONDENT
                                .......
 Mr. Joydeep Chatterji, Advocate for applicants
 Mr. R.V. Dasalkar, A.P.P. for respondent - State, assisted by
 Ms Ashwini R. Mate, Advocate for original complainant
                                 .......

                                      WITH
              CRIMINAL APPLICATION NO.3527 OF 2022 IN
              CRIMINAL APPLICATION NO.3411 OF 2022 IN
                  CRIMINAL APPEAL NO.727 OF 2022


 Rakhi w/o Manoj Jodiwale                          ... APPLICANT
          VERSUS
 The State of Maharashtra & ors.                   ... RESPONDENTS
                                .......
 Ms Ashwini R. Mate, Advocate for applicant
 Mr. R.V. Dasalkar, A.P.P. for respondent No.1 - State
 Mr. Joydeep Chatterji, Advocate for respondents No.2 & 3
                                 .......

                                      WITH
              CRIMINAL APPLICATION NO.3436 OF 2022 IN
                  CRIMINAL APPEAL NO.758 OF 2022


 Nitu w/o Rameshwar Jodiwale                       ... APPLICANT
          VERSUS




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                                                  Cri. Appln. No.3411/2022 with
                                                      Cri. Appln. No.3436/2022
                                     :: 2 ::


 The State of Maharashtra                           ... RESPONDENT
                                .......
 Mr. N.S. Ghanekar, Advocate for applicant
 Mr. R.V. Dasalkar, A.P.P. for respondent - State, assisted by
 Ms Ashwini R. Mate, Advocate for original complainant
                                 .......

                                      WITH
              CRIMINAL APPLICATION NO.3529 OF 2022 IN
              CRIMINAL APPLICATION NO.3436 OF 2022 IN
                  CRIMINAL APPEAL NO.758 OF 2022


 Rakhi w/o Manoj Jodiwale                           ... APPLICANT
          VERSUS
 The State of Maharashtra & anr.                    ... RESPONDENTS
                                .......
 Ms Ashwini R. Mate, Advocate for applicant
 Mr. R.V. Dasalkar, A.P.P. for respondent No.1 - State
 Mr. N.S. Ghanekar, Advocate for respondent No.2
                                 .......

                                 CORAM :       R. G. AVACHAT, AND
                                               R. M. JOSHI, JJ.

                                 DATED :       18th OCTOBER, 2022.
 ORDER:

Heard. Criminal Applications No.3527/2022 and

3529/2022 are allowed. The original complainant is permitted

to assist learned A.P.P. in the respective Criminal Applications.

2. Both these applications are being decided by this

common order since they arise from the appeals preferred

against the order of conviction and consequential sentences.

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 3 ::

The applicants hereby seek suspension of execution of

substantive sentences of imprisonment. The applicants

Rameshwar and Mukesh (in Criminal Application

No.3411/2022) have been convicted for the offence

punishable under Section 302 r/w 34, 364 r/w 34 and 120-B

r/w Section 302 of the Indian Penal Code and, therefore,

sentenced to suffer imprisonment for life on each count with

fine.

While the applicant Nitu (in Criminal Application

No.3436/2022) has been convicted for the offence punishable

under Section 120-B read with Section 302 of the Indian Penal

Code and, therefore, sentenced to suffer imprisonment for life

with fine.

3. Mr. Ghanekar, learned counsel for the applicant in

Criminal Application No.3436/2022 submits that, the applicant

Nitu is a woman. She was on bail pending trial. She has

been convicted for conspiracy to commit murder. According to

learned counsel, except the Call Data Record (CDR) of phone

calls between her and her husband, and the incident of her

quarrel with the informant, there is nothing against her. The

learned counsel ultimately urged for allowing the application.

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 4 ::

4. So far as regards the applicants Rameshwar and

Mukesh in Criminal Application No.3411/2022 are concerned,

learned counsel Mr. Chatterji would submit that, the case was

based on circumstantial evidence. A disclosure statement

made by applicant Rameshwar has been used against his

brother - applicant Mukesh. The same is inadmissible in law.

What has been recovered pursuant to the disclosure

statement by applicant Rameshwar, were the clothes of

himself and applicant Mukesh, which were allegedly on their

person on the given day. Although the clothes found to have

some stains of human blood, the C.A. reports in that regard

are inconclusive. As such, there is nothing to indicate that

clothes of these applicants had blood stains of the blood group

of the deceased. The F.I.R. was lodged against unknown

person. A mere fact that the civil suit is pending, would not

constitute the motive to eliminate a three year old child.

According to learned counsel, the applicants have been in jail

for over six years. It will take time for the appeals to come

up for hearing by their turn. The learned counsel ultimately

urged for allowing the application.

5. The learned A.P.P. and the learned counsel for the

informant would, on the other hand, submit that, the trial

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 5 ::

Court has given well reasoned order. The applicants have

killed a three year old member of their family. Both the

learned counsel urged for rejection of the applications. They

would even submit that, hearing of the appeals could be

expedited.

6. Considered the submissions advanced. Perused

the impugned judgment and the evidence relied on. True, the

case is based on circumstantial evidence. The applicants

Rameshwar and Mukesh were not on bail pending trial. The

F.I.R. was lodged by a wife of their real brother. It is not in

dispute that the informant filed a civil suit against the

applicants herein for partition and separate possession of a

joint family property. She along with her husband and

children has shifted to Aurangabad on account of having been

harassed by the applicants and other joint family members.

She has even filed a prosecution under Section 498-A of the

Indian Penal Code. The applicants and the informant belong

to "Ahir Gavali" community. On 1/5/2016, there was a mass

marriage ceremony of this community members. Her brother

and sister were to get married in the mass marriage

ceremony. The informant was blessed with a minor son and

daughter as well. The marriage ceremonies were to be held

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 6 ::

at Guru Ganesh Bhavan Jain School, Jalna. The informant

along with her family members had, therefore, come from

Aurangabad to Jalna. She had come to the marriage place on

the previous day itself. Saksham, a three year old child of the

informant was with her. While the informant was busy in

some marriage related work, Saksham went missing. A

search was, therefore, made for him, but in vain. The

informant, therefore, lodged a report, alleging some unknown

person to have kidnapped her minor child. A crime, therefore,

came to be registered. The dead body of Saksham was found

on the following day. Section 302 of the Indian Penal Code,

therefore, came to be invoked. CCTV footage facility was

available at Guru Ganesh Bhavan Jain School, Jalna. The

investigating officer obtained the CCTV footage to find

convict- Pawan (original accused No.8) to have lifted

Saksham and took him away. Pawan, therefore, came to be

arrested. The informant suspected involvement of the

applicant and other family members in kidnapping and

committing murder of her minor child. She, therefore, gave a

supplementary statement indicting them.

7. The applicant Nitu is wife of applicant Rameshwar.

She was all along present at marriage place, when the offence

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 7 ::

took place at some other place. She has not been attributed

with any overt act. She was on bail pending trial. The trial

Court has convicted her on the basis of number of phone calls

between her and her husband, at immediate before and post

proximity of the time of incident. Admittedly, conversation

between the two could not be intercepted or obtained. In our

view, the CDR of the calls between applicant Nitu and her

husband, and the alleged incident of quarrel between her and

the informant, may fall short to ultimately uphold her

conviction for the offence of conspiracy to commit murder.

We are, therefore, inclined to grant her application.

8. So far as regards other applicants - Rameshwar

and Mukesh are concerned, it is reiterated that, original

accused No.8 Pawan was seen in CCTV footage, taking away

the child (deceased) with him. On his arrest, he made a

disclosure statement, pursuant to which blood stained clothes

on his person and the motorcycle used in commission of the

offence came to be recovered. During his disclosure

statement, he named the present applicants Rameshwar and

Mukesh, at whose behest he kidnapped Saksham. It is true

that, disclosure of the names of the co-accused (applicants),

during disclosure statement made by Pawan, may not be

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 8 ::

admissible. The fact is, however, that, the applicant

Rameshwar made a disclosure statement, pursuant to which

clothes of himself and that of applicant Mukesh came to be

seized. The C.A. reports indicate those clothes had human

blood stains on them. True, the C.A. reports are inconclusive

as regards the blood group. Admittedly, all was not well

between the informant and the applicants. A civil suit has

admittedly been filed by the informant against the applicants

for partition and separate possession of family properties.

The applicants had, therefore, strong motive to commit the

offence. There is evidence to indicate that, all the applicants

had come to Jalna for attending mass marriage ceremony

since there was a marriage of cousin of applicant Nitu as well.

Cell phone tower location for the relevant time of the

applicants Rameshwar and Mukesh indicate to be at or around

the scene of offence. No submissions have been advanced by

the learned counsel as regards the tower location.

9. The applicants may have a good case. After

having gone through the impugned judgment and the

evidence for the prosecution, we are not inclined to suspend

the sentences of imprisonment of the applicants Rameshwar

and Mukesh for the present. Criminal Application

Cri. Appln. No.3411/2022 with Cri. Appln. No.3436/2022 :: 9 ::

No.3411/2022 is, therefore, dismissed.

10. We expedite the hearing of Criminal Appeals

No.727/2022 and 758/2022.

11. If the appeals could not be heard for one or the

other reason within a reasonable time, the applicants

Rameshwar and Mukesh are at liberty to move application

under Section 389 of the Code of Criminal Procedure again.

12. Criminal Application No.3436/2022 is allowed.

Pending the appeal, the substantive sentence of imprisonment

imposed by learned Additional Sessions Judge, Jalna in

Sessions Case No.107/2016 by order dated 20/9/2016, as

against the applicant Nitu w/o Rameshwar Jodiwale is

suspended and the applicant Nitu w/o Rameshwar Jodiwale be

released on bail on her executing P.R. bond in the sum of

Rs.15,000/- (Rupees fifteen thousand) with one surety in the

like amount.

          ( R. M. JOSHI, J. )                         ( R. G. AVACHAT, J. )



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