Bombay High Court
Vijay S/O. Bubasaheb Kakade vs The State Of Maharashtra on 6 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25777-DB
appeal-84.18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.84 OF 2018
Vijay s/o Bubasaheb Kakade,
Age-63 years, Occu:Nil,
R/o-Hanuman Nagar, Bypass road,
Osmanabad, Taluka and
District-Osmanabad.
...APPELLANT
(Ori. Accused)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. A.M. Phule Advocate for Appellant (appointed).
Appellant - Vijay Bubasaheb Kakade present through
Video Conferencing.
Mr. S.D. Ghayal, A.P.P. for Respondent - State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 6th DECEMBER, 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. The appellant takes an exception to challenge his
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conviction in Sessions Case No.68 of 2015 by the learned
Additional Sessions Judge, Osmanabad on 29 th November 2017
thereby convicting the appellant for the offence punishable under
Section 302, 201 of the Indian Penal Code i.e. for murdering his
wife and causing the evidence to disappear with an intention to
screen himself.
2. The prosecution case is that one Vaibhav Ashok Patil, who
is the nephew of deceased Suman Vijay Kakade lodged First
Information Report (for short "FIR") on 3 rd June 2015 with
Osmanabad City Police Station vide Crime No. 184 of 2015. He
has disclosed that deceased Suman was his paternal aunt, who
was married to the accused. Deceased and accused have two
sons and one daughter, however, their one son and daughter
have expired. Deceased Suman was residing with her husband
i.e. accused, son Kiran and his wife, in Hanuman Nagar,
Osmanabad. Accused was always raising suspicion over the
character of deceased and used to assault her. Whenever Suman
used to come to the house of the informant, she used to disclose
the said fact to informant and his father (brother of deceased).
Informant, his father and another aunt Mangal (sister of
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deceased Suman) used to visit the house of the accused and
used to give understanding to the accused, however, there was
no change in the behaviour of the accused. Accused still used to
raise suspicion over her chastity and assault her. 10 to 15 days
prior to the FIR, Mangal had gone to the house of the informant
and told him that accused is still beating Suman and even on
that day also she was assaulted. Therefore, informant Vaibhav
brought Suman to his house where she stayed for about 4 to 5
days and thereafter she was left at her house. At that time
accused told informant that why he has intervened when Suman
is his wife, he would kill her and even see to the informant. The
informant further informed that around 11.00 a.m. on 3 rd June
2015 he was near Zilla Parishad office when he received phone
call of Kiran who told him to come to house and to see what has
happened to Suman. Vaibhav went to the Suman's residence
with his father and Mangal. They found foul smell coming from
the barrel (water tank) which was in front of the house of
Suman. They could see saree and hair floating in the barrel.
They went near the barrel and saw Suman's face. She was dead
and therefore, he got confirmed that accused has murdered
Suman and put her dead body in the barrel filled with water.
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3. After the offence came to be registered, investigation was
taken up. Inquest panchnama was prepared with the help of two
panchas. Even the medical officer had visited the spot and
postmortem was conducted at the spot itself. After the
postmortem was done, the clothes on the person of the dead
body came to be seized under panchnama. After the spot
panchnama was executed, accused came to be arrested. He was
got medically examined and six injuries were found on the
person of the accused. Opinion was sought in respect of the said
injuries also. Seized articles were sent for chemical analysis.
Statements of witnesses were recorded. After the investigation
was over, charge-sheet came to be filed.
4. After committal of the case, the charge was framed and
prosecution examined in all seven witnesses to bring home the
guilt of the accused. After considering the evidence on record
and hearing both sides, the learned trial Judge has held that the
prosecution has proved the charge against the accused. The
accused has been sentenced to undergo imprisonment for life
and to pay fine of Rs.5,000/-, in default to suffer rigorous
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imprisonment for one year, for the offence punishable under
Section 302 of the Indian Penal Code. He has been further
sentenced to undergo rigorous imprisonment for five years and
to pay fine of Rs.1,000/-, in default to undergo rigorous
imprisonment for six months, for the offence punishable under
Section 201 of the Indian Penal Code. The substantive sentences
were directed to be run concurrently. The set off under Section
428 of the Code of Criminal Procedure was given. The said
Judgment and order is under challenge under Section 374 of the
Code of Criminal Procedure, in this Appeal.
5. Heard learned Advocate Mr. Phule, who came to be
appointed to represent the appellant who could not afford to
engage Advocate of his choice, as the Advocate who earlier
represented him failed to appear for many dates and thereafter
when another Amicus Curiae was appointed, she came to be
appointed as Assistant Public Prosecutor and therefore, fresh
Amicus Curiae came to be appointed to represent the accused
who is in jail. Heard Mr. Ghayal, appearing for the respondent -
State.
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6. It has been vehemently submitted on behalf of the
appellant that the learned trial Judge has utterly failed in
appreciating the evidence. The case of the prosecution was
based on circumstantial evidence and therefore, the chain of
circumstances ought to have been proved beyond reasonable
doubt. PW-4 Kiran and PW-5 Varsha are the son and daughter-
in-law of accused and deceased. However, they have not
supported the prosecution story that the accused used to raise
suspicion over the character of deceased and used to assault her.
Rather it has come in evidence of PW-4 Kiran that accused alone
was residing their old house which is situated in the same village
since death of his another son Balaji in 2011. Nobody has been
examined to prove that prior to the death of Suman she was in
the company of the accused. PW-3 Vaibhav Ashok Patil is the
informant, however it can be seen from his examination-in-chief
that he has not fully supported the prosecution. It has not come
on record since when the accused was suspecting the fidelity of
deceased and subjected her to beating. Informant has also not
stated that on or around the date of incident the deceased was
in the company of the deceased. The dead body of Suman was
found in the barrel / water tank filled with water. It was in highly
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decomposed state. The autopsy doctor has not given the
probable time of death of Suman. Under the said circumstance,
there was absolutely nothing which can point out that accused is
the culprit. The conviction is, therefore, illegal which deserves to
be set aside.
7. Per contra, the learned APP strongly supported the reasons
those were assigned by the learned trial Judge while convicting
the accused. The defence has not led any evidence to prove alibi.
The cross-examination of a hostile witness cannot be considered
to infer that the accused and deceased were residing separately.
The accused has also not given any explanation about six
injuries which were found on his person when he was examined
by PW-7 Dr. Ashwini Sontakke. The accused being the husband
of deceased Suman, was her custodian and therefore, it was for
him to explain under which circumstances his wife came to be
murdered. As the said explanation is absent, the learned trial
Judge was justified in invoking Section 106 of the Indian
Evidence Act and therefore, the conviction is proper.
8. At the outset, we would like to begin by saying that it is
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not a presumption that when a wife is found murdered then the
husband has to explain the circumstances. It depends upon the
situation and the evidence. The present case is based on
circumstantial evidence and therefore as per the settled
principles of law as enumerated in Sharad Birdhichand Sarda vs.
State of Maharashtra reported in (1984) 4 SCC 116 and
subsequent pronouncements of the Hon'ble Apex Court; the
prosecution is duty bound to prove the five golden principles,
which are as follows:-
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction
between 'may be proved' and 'must be or should be proved' as
was held by this Court in Shivaji Sahabrao Bobade vs. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri.
L.J. 1783] where the observations were made : [SCC para 19,
p.807 : SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the
mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."
(2) 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
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accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) 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.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence."
9. It has to be considered as to whether the death of
deceased Suman was homicidal in nature and if it is so, then
when her death occurred. It appears from the entire record that
there is no much dispute as regards the death of Suman being
homicidal in nature. Still the prosecution has examined PW-1 Dr.
Ashwini Jidge who conducted the autopsy. She was the
officiating medical officer in civil hospital, Osmanabad. It was
informed by the police officer on 3 rd June 2015 that the
postmortem is required to be conducted at the spot as the dead
body is highly decomposed. She herself with her senior colleague
Dr. Palla went to Hanuman Nagar, Osmanabad. The dead body
was laid near Sintex water tank in front of the house of the
deceased Suman. After examining the dead body, she found that
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the body was fully decomposed. There were surface wounds and
injuries but those could not be seen due to decomposition of
body. She opined that 'according to the external and postmortem
findings, the decomposed body, the exact cause of death cannot
be given. As viscera was preserved for chemical analysis, which
reveals no poison as per the report'. She has given the final
opinion. PW-1 Dr. Ashwini Jidge has not been cross-examined by
the accused. Thus when a dead body was found in the water
tank though PW-4 Kiran Kakade has admitted that the water
from the tank was required to be taken out by bending oneself,
we do not find that it could have been an accident. There is no
suggestion that the height of the water tank was not normal and
the height of the deceased was such that unless she could have
bend she was not able to take out the water from the water
tank. Further the evidence of PW-2 Rahul Jadhav, the spot
panch, does not suggest that any such material was there near
the water tank from which it can be inferred that deceased was
in the process of fetching water from the tank. Thus the
prosecution had proved that death of Suman was homicidal in
nature. However, from the testimony of PW-1 Dr. Ashwini Jidge,
we cannot get as to what could have been the probable time of
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death of Suman. There was absolutely no attempt by the learned
APP conducting the trial to extract the said information. Only fact
that has been proved is that on 3rd June 2015 the dead body of
Suman was found in highly decomposed state.
10. The prosecution has not examined any person to prove
that deceased was in the company of the accused prior to the
probable time of death. PW-4 Kiran has stated in his
examination-in-chief that he was residing with his wife and
deceased in Hanuman Nagar, Osmanabad. He left for Latur on 1st
June 2015 with his wife for her medical treatment and he had
returned around 11.00 a.m. on 3 rd June 2015. He searched for
mother as he could not find her and therefore, he went near the
drum / water tank and found the mother inside. Thus, it is to be
noted that he has categorically stated that they were only three
persons residing jointly in Hanuman Nagar i.e. the place where
the dead body was found in the drum (Sintex water tank). PW-4
Kiran has not supported the prosecution and though, after
seeking permission, questions in the nature of cross-examination
have been put to him by the learned APP, yet nothing favourable
to the prosecution has been transpired. In his cross-examination
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on behalf of the accused, PW-4 Kiran has admitted that his
father i.e. accused was residing in his old house since death of
his brother Balaji in 2011. Accused used to survive his life in
Mahadeo temple. It is to be noted that the prosecution has not
utilized the permission that was sought. When PW-4 Kiran has
stated that he was not in the house for about three days
(inclusive of 3rd June 2015) whether he had told his father to
look after the mother in his absence, has not been tried to be
extracted from him by the prosecution. PW-4 Kiran has
categorically denied that his father used to raise suspicion over
the character of his mother. PW-5 Varsha Kiran Kakade -
daughter-in-law has also not supported the prosecution. That
means, the persons who could have had better knowledge about
the dispute between deceased and accused have not supported
the prosecution. They cannot be said to be the persons who
could have stated that deceased was in the company of accused
prior to her death.
11. PW-3 Vaibhav Ashok Patil had lodged the FIR, however,
when it came to the substantive evidence, we can find that he
has not stated many things which he has told in his FIR. It is to
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be noted that PW-3 Vaibhav is an Advocate who has knowledge
about the law, still he has not given the details which he had told
in the FIR Exhibit-25. He has not stated since when the accused
was raising suspicion over the character of his paternal aunt
Suman. Whether that suspicion was vague or was in respect of a
particular person. Though in his FIR he has stated that ten days
prior to the incident he had brought deceased to his house and
then left her in the company of the accused four to five days
thereafter, he has not stated anything like that in his
examination-in-chief. Under the said circumstance, even PW-3
Vaibhav is also not the person who had seen the deceased in the
company of the accused and therefore, the inference drawn by
the learned trial Court that the accused being the husband was
custodian of the wife prior to the death of deceased, appears to
be a wrong inference and it has been arrived at on the basis of
whims. PW-3 Vaibhav admits in his cross-examination that the
accused is having house in Mahadeo lane, Osmanabad and the
incident where death has taken place, appears to be at a
different place i.e. Hanuman Nagar, Osmanabad. PW-3 Vaibhav
claims ignorance to the fact that accused started living in his old
house after death of his another son Balaji. Being an Advocate -
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having knowledge of law, nobody had estopped informant
Vaibhav from setting the law in motion when according to him
deceased Suman had made complaint with him that the accused
was assaulting her on raising suspicion over her character. We
can understand that if the said act was going on for some days
and then understanding was given. The word that is used in the
FIR is " सतत ", that means continuously. If the assault by raising
suspicion over the character was a frequent act, then informant
ought to have helped his paternal aunt. The testimony of the
informant is therefore, not sufficient to connect the accused to
the crime.
12. The prosecution is mainly relying on the testimony of PW-7
Dr. Ashwini Sontakke who had examined the accused on 3 rd June
2015. She found following six injuries on the person of the
accused:-
"1. Linear abrasion on left side chest below clavicle of size 6 x 0.2
c.m. reddish in colour, caused more than 48 hours.
2. Multiple abrasion on left shoulder back side of size 1 x 1 c.m., 1
x 0.5 c.m., 0.5 x 0.5 c.m. and 0.5 x 0.2 c.m., reddish brown in
colour caused more than 48 hours.
3. Contusion on right scapular region of size 15 x 10 c.m. reddish
in colour caused more than 48 hours.
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4. Multiple abrasion over left shoulder lateral aspect of size 0.5 x
0.5 c.m., 0.5 x 0.2 c.m., 1 x 0.5 c.m., reddish brown in colour
caused more than 48 hours.
5. Abrasion on left side chest 5 c.m. below lateral to left nipple of
size 1 x 0.5 c.m. reddish brown in colour caused more than 48
hours.
6. Abrasion on right shoulder back side of size 6 x 0.2 c.m. reddish
brown in colour caused more than 48 hours."
13. Accordingly, PW-7 Dr. Ashwini Sontakke has issued
certificate Exhibit-44. According to her, the injuries noted by her
were possible by nails or hard and blunt object. She has given
the age of the injuries as more than 48 hours. In cross-
examination, she has admitted that those six injuries noted in
Exhibit-44 are possible if a person falls on a hard surface.
Important point to be noted is that at the time of the incident,
the age of the accused is stated to be 61 years and therefore,
possibility of fall cannot be ruled out and by any stretch of
imagination those injuries cannot be co-related to the incident
merely on the ground that the age of those injuries was more
than 48 hours. The said circumstance or an attempt to connect
those injuries to the date of incident has not been established
beyond reasonable doubt, as in fact the prosecution has failed
to prove the probable date and time of death of Suman.
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14. Perusal of the Judgment and order passed by the learned
trial Judge would show that the findings were based on whims
and imagination. The basic legal principles were not considered
while assessing or scrutinizing the evidence and therefore, such
Judgment and order cannot be allowed to sustain. It deserves to
be quashed and set aside by allowing the Appeal. Hence we
proceed to pass following order:-
ORDER
I. The appeal stands allowed.
II. The conviction of the appellant Vijay s/o
Bubasaheb Kakade in Sessions Case No. 68 of 2015
dated 29.11.2017 by learned Additional Sessions
Judge, Osmanabad for the offence punishable under
Sections 302 and 201 of the Indian Penal Code stands
quashed and set aside.
III. The appellant stands acquitted of the offence
punishable under Sections 302 and 201 of the Indian
Penal Code.
IV. The appellant be set at liberty if not required in
any other case.
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V. Fine amount deposited, if any, be refunded to the
appellant after the statutory period.
VI. We clarify that there is no change as regards the
order in respect of muddemal seized in the matter.
VII. The fees of the learned Advocate appointed to
represent the appellant is quantified at Rs.10,000/-
(Rupees Ten Thousand only), to be paid by the High
Court Legal Services Sub-Committee, Aurangabad.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/DEC23
