Bombay High Court
Ramesh Bhanudas Shelke vs The State Of Maharashtra on 6 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26142-DB
appeal-457.18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.457 OF 2018
Ramesh Bhanudas Shelke,
Age-41 years, Occupation:Agriculture,
R/o-Hippalgaon, Tq-Shirur-Anantpal,
District-Latur.
...APPELLANT
(Ori. Accused No.1)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Sachin S. Panale Advocate for Appellant (appointed).
Ms. Uma S. Bhosale, 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. Present Appeal has been filed by original accused No. 1
challenging his conviction by learned Additional Sessions Judge,
Nilanga, District-Latur in Sessions Case No.05 of 2016 on 14 th
May 2018, whereby he came to be convicted for the offence
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punishable under Section 302 of the Indian Penal Code. It will
not be out of place to mention here that in all five accused
persons faced the trial for the offence punishable under Section
302 and Section 498-A of the Indian Penal Code. Accused No.1
came to be acquitted of the offence punishable under Section
498-A of the Indian Penal Code, whereas accused Nos. 2 to 5
came to be acquitted of the offence punishable under Section
302, 498-A of the Indian Penal Code by the same Judgment.
2. PW-7 Chandrakant Sheshsrao Khadade lodged report with
Shirur-Anantpal Police Station on 1st September 2015. It was
informed in the First Information Report (for short "the FIR")
that his sister Savita got married to accused No.1 Ramesh in
2006. Accused persons started harassing her when she had not
begotten issue for about three to four years after the marriage.
She was kept starved and harassed on account that she should
bring money for purchasing four wheeler vehicle. Savita used to
inform the harassment to the informant and other relatives.
However, due to poor financial condition the amount could not be
given. The harassment then got intensified. Savita had then
lodged a report with Women's Grievance Redressal Cell. Accused
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No.1 assured that he would look after Savita properly and
therefore, he took Savita for cohabitation after about seven to
eight months. Thereafter again Savita informed that she is being
harassed by her in-laws and husband. Informant had gone to the
matrimonial home of Savita on 29 th August 2015 for Rakhi
Pournima festival, whereupon Savita again conveyed about the
ill-treatment to her. Informant persuaded her and came back to
his house. But on 1st September 2015, his relative Shivaji
Kompale from Latur gave information to him that around 9.00
a.m. Savita has been assaulted and murdered by the appellant.
Informant went to the matrimonial home of Savita around 10.30
to 11.00 a.m. He found Savita in dead condition in the house,
however, there was no evidence. He has then lodged report with
Police Station, on the basis of which offence came to be
registered vide Crime No. 69 of 2015.
3. The Police had conducted inquest panchnama and sent the
dead body for postmortem. Thereafter the panchnama of the
spot was got executed and other panchnamas of seizure of the
clothes of the deceased and after the arrest of the accused, the
arrest panchnamas were got executed. Statements of witnesses
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were got recorded and after completion of the investigation,
charge-sheet came to be filed.
4. After committal of the case, charge was framed. All the
accused had pleaded not guilty. Prosecution has then examined
in all eleven witnesses to bring home the guilt of the accused.
After hearing both sides and taking into consideration the
evidence on record, the learned trial Judge has pronounced the
Judgment as aforesaid i.e. convicting the appellant for the
offence punishable under Section 302 of the Indian Penal Code
and thereby sentencing him to suffer imprisonment for life and
to pay fine of Rs.1000/-, in default to suffer rigorous
imprisonment for six months, which is under challenge in this
Appeal.
5. The appellant was earlier represented by an Advocate,
however by order dated 31 st October 2023 the said Advocate
came to be discharged. Then learned Advocate Mr. Sachin Panale
has been appointed to represent the appellant, i.e. legal has
been provided to the appellant.
6. It has been vehemently submitted on behalf of the
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appellant that the learned trial Judge has not appreciated the
evidence properly. The appellant is not disputing that deceased
Savita was found murdered in the house but only on that count
the learned trial Judge has invoked Section 106 of the Indian
Evidence Act. In fact, if we consider the findings of the trial
Court, then it has acquitted all the accused of the offence
punishable under Section 498-A of the Indian Penal Code. That
means there was no harassment or subjecting deceased to
cruelty by the accused. The case of the prosecution was then
based on circumstantial evidence as regards offence under
Section 302 of the Indian Penal Code is concerned. Under the
said circumstance, the prosecution ought to have established
mens rea as against accused No.1 - appellant. The incident has
taken place in 2015 whereas the marriage had taken place in
2006. The marriage was solemnized nearly ten years ago and
again at the cost of repetition it can be said that the earlier
complaint by Savita to Women's Grievance Redressal Forum was
not considered by the trial Court as there is acquittal for the
offence under Section 498-A of the Indian Penal Code.
Therefore, when the intention to commit murder has not been
proved beyond reasonable doubt, so also it is not coming on
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record as to with which weapon the alleged head injuries have
been caused to Savita and the weapon has not been discovered,
the learned trial Judge ought not to have come to the conclusion
that the offence of murder has been proved beyond reasonable
doubt. It is admitted by the prosecution witnesses, especially the
informant that appellant is a driver by profession. He was having
four wheeler vehicle even prior to the marriage and he used to
do the business of giving the vehicle on hire basis to the tourists
and he himself used to drive the same, there appears to be no
necessity for him to purchase another vehicle. Appellant had
examined DW-1 Shirish Patil, who in his examination-in-chief,
has specifically stated that he had hired the Jeep of the appellant
for going to Pune and Tirupati. He had been to Tirupati in May
2015 and on 30th August 2015 at Pune. DW-1 Shirish Patil has
categorically stated that on 29th August 2015 his both daughters
had been to Latur for Rakhi Pournima festival and on the next
day i.e. 30th August 2015 he has been, with his wife and
daughters, to Pune. They have started from Murud at about 3.30
p.m. and reached Pune at about 9.30 p.m. On 31 st August 2015,
wife of DW-1 Shirish stayed with daughters for arranging the
domestic articles and he has been to his nephew for handing
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over his articles. Accused No.1 - appellant had made his Jeep
stationary outside the room and then DW-1 Shirish along with
his wife returned to Murud from Pune on 1 st September 2015 at
about 4.30 a.m. in the Jeep of accused No.1. His testimony has
been unnecessarily disbelieved by the learned trial Judge when
the plea of alibi has been specifically proved by the appellant.
The conviction awarded to the appellant is therefore, illegal and
cannot be allowed to sustain. The learned Advocate for the
appellant has also specifically stated that PW-2 Madhukar and
PW-3 Ujawala, both have turned hostile but the learned trial
Judge has believed only the relatives of the deceased and
therefore, the Appeal deserves to be allowed.
7. Per contra, the learned APP strongly supported the reasons
given by the learned trial Judge while convicting the appellant for
the offence punishable under Section 302 of the Indian Penal
Code. It was submitted on behalf of the prosecution that for plea
of alibi the testimony of DW-1 Shirish was not sufficient. He was
not having any documentary evidence to support whatever he
has stated in his examination-in-chief. PW-1 Dinanath Kamble
was the police patil of the village, who came to know around
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8.30 a.m. that quarrel was going on in the house of Bhanudas
i.e. father of the appellant. He immediately went to the house of
the accused and saw that the latch was put to the door of the
house of the accused from the outside. Therefore, he himself
removed it, along with the neighbours he went inside the house
and saw that Savita was lying on the floor. He was accompanied
by four to five neighbours. However, now neighbours have
turned hostile, but their hostility will not affect. From the inquest
panchnama and the testimony of autopsy surgeon PW-8 Dr.
Balaji Devangre, it is certain that there were multiple injuries on
the person of the deceased and therefore, the probable cause of
death is 'head injury with multiple wounds over body'. Here
death is homicidal in nature. As regards previous complaint also,
prosecution has examined PW-10 API Varsha Dandime and the
complaint has been produced on record. PW-7 Chandrakant, who
is brother of the deceased has proved the FIR Exhibit-19 and
therefore, the conviction awarded to the accused - appellant is
perfectly legal and does not require any interference.
8. Here, from the testimony of the autopsy surgeon PW-8 Dr.
Balaji Devangre, who found eight external injuries and
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corresponding internal injuries i.e. big haematoma over the
occipital area at the base of brain with vault fracture, it can be
certainly said that it has been proved by the prosecution that
death of Savita was homicidal in nature. In his cross-
examination PW-8 Dr. Balaji has stated that the injury shown to
the head is impossible in such case even if the person falls
directly on the head. It appears that by suggesting the said
question, it was in the mind of the accused - appellant to create
a possibility that Savita might have fallen from the staircase.
However, the spot panchnama does not show that there was any
staircase nearby, rather the roof of the matrimonial house of
Savita is made up of iron sheets. Even though final cause death
certificate has not been given, yet autopsy report Exhibit-99 was
sufficient to prove that death of Savita was homicidal in nature.
9. Though the prosecution has brought on record that Savita
had sustained multiple wounds including the injury to the head,
it is not made clear, as to by which means the injuries would
have been caused. Injury Nos. 2 to 8 are contusions. It appears
that the prosecution intended to say that Savita's body,
especially head was banged on the wall by pushing Savita
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forcibly to the wall. However, the spot panchnama is not
supporting the prosecution. The spot panchnama does not say
that there were signs to show that such banging or pushing to
the wall had occurred several times. There is no seizure of any
weapon in this case. Therefore, prosecution ought to have
unfolded, as to how the murder would have been committed. It
cannot be expected that the prosecution would leave it as
mystery. Therefore, on this aspect the evidence adduced by the
prosecution is lacking.
10. All the accused persons including the appellant have been
acquitted of the offence punishable under Section 498-A of the
Indian Penal Code. Neither the relatives of the deceased Savita
nor the prosecution has challenged the said acquittal. That
means, it has become final. When the trial Court itself had come
to the conclusion that the prosecution was not able to prove that
Savita was subjected to cruelty, and the case is based upon the
circumstantial evidence, then it was incumbent on the
prosecution to prove the mens rea or intention on the part of the
appellant to commit murder of his wife. At this stage itself we
would like to take note of the fact that PW-7 Chandrakant, PW-5
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Ashok Malwade (maternal uncle of deceased Savita), PW-6
Tatyarao Khandade (cousin of deceased Savita) were admittedly
not present on the previous day of the incident. There is no eye
witness to the incident, but testimony of PW-1 Dinanath Kamble,
police patil of the village, would suggest that some neighbors of
accused informed him that quarrel was going on in the house of
Savita. In his examination-in-chief itself he has stated that
neighbour of Bhanudas told him that around 7.00 to 7.30 a.m.
accused - appellant, his father Bhanudas and Savita were
present in the house and the quarrel was going on between
them. Those neighbours were able to listen the noise of quarrel.
In the cross-examination PW-1 Dinanath has specifically stated
that he will not be able to name the said neighbour who gave
him that information. Therefore, whatever PW-1 Dinanath has
said as to what was seen and heard by the neighbours, for that
purpose his testimony is hear-say in nature. If he would have
named those neighbours then they could have been examined to
support the prosecution story and also his testimony. Those
neighbours would have been the best witnesses in this case.
However, due to non-revelation of the name of the said
neighbours, they could not be examined. PW-1 Dinanath has not
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taken name of either PW-2 Madhukar or PW-3 Ujawala or PW-9
Manchala as the person or persons who had heard the quarrel
and then seen accused No.1 and his father leaving the house by
latching the door from the outside. Under the said circumstance,
the hostility of these three witnesses cannot be considered as an
act of relieving the prosecution from examining that neighbour
who had informed the incident to PW-1 Dinanath around 8.30
a.m. of 1st September 2015. The prosecution therefore, has not
examined the best witness in this case.
11. PW-2 Madhukar, PW-3 Ujawala and PW-9 Manchala have
turned hostile. In the cross-examination they have admitted that
they had seen the dead body of Savita in her house but claimed
ignorance about her murder by the accused. PW-2 Madhukar
appears to be related to the accused, so also PW-9 Manchala has
deposed that accused No.1 is her nephew. However, as
aforesaid, PW-1 Dinanath is not taking the names of these three
witnesses to be the person or persons who had heard the quarrel
from the house of accused and informed him about the same.
12. The case of the prosecution, as aforesaid, is based on
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circumstantial evidence and therefore, the prosecution was
supposed to prove the golden principles of circumstantial
evidence laid down in Sharad Birdhichand Sarda vs. State of
Maharashtra reported in (1984) 4 SCC 116 by the Hon'ble Apex
Court; which are as follows:-
" (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
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. "
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13. Herein this case, neither the best witnesses have been
examined nor the mens rea has been proved. When the
prosecution had come with the case that even the other accused
persons have taken part in commission of the murder, especially
accused No.2 Bhanudas and then other accused persons are
acquitted of the offence punishable under Section 302 of the
Indian Penal Code, then it is doubtful as to whether only accused
No.1 i.e. present appellant could have committed the murder
single-handedly. This aspect ought to have been considered by
the learned trial Judge. It had come on record that accused No.4
Surekha and accused No.5 Sunita are the sisters of accused
No.1. They are residing at their respective matrimonial homes.
Unless their presence in the house of accused Nos. 1 to 3 would
have been proved just prior to the incident, charge for the
offence punishable under Section 302 read with Section 34 of
the Indian Penal Code should not have been framed. A proper
examination of the record i.e. charge-sheet and other material
is therefore, necessary at the time of framing of charge. The
charge framed without application of mind would sometimes be
fatal to the prosecution case and may affect the merits of the
case.
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14. Merely because the appellant was the husband of deceased
Savita and she was found murdered in her house, we cannot
presume, by invoking Section 106 of the Indian Evidence Act
that the murder might have been committed by the husband. We
cannot shift the burden on the shoulders of the accused No.1 on
the strength of provisions under Section 106 of the Indian
Evidence Act. It should be proved before the said doctrine is
invoked that the wife was in the company of the husband prior to
the incident. Here, the prosecution has not attempted to
examine such witness to prove that accused No.1 was in the
village and that too was at home when the alleged incident took
place. It has not been brought on record through autopsy
surgeon PW-8 Dr. Balaji, as to what was the probable time of
death. Unless the said probable time of death would have been
proved, we cannot discard the testimony of DW-1 Shirish. The
appellant had taken the defence that he was not at home or
even in the village when the alleged incident took place. As
aforesaid, DW-1 Shirish has given the details, as to where the
appellant - accused No.1 was around the time of death of
Suman. Testimony of DW-1 Shirish cannot be just discarded as
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he has no documentary evidence to support his contention. Even
if for the sake of arguments it is accepted that his testimony is
not sufficient to prove the plea of alibi, yet the question of
supporting the proof of alibi would come only after the
prosecution establishes its case beyond reasonable doubt. Unless
presence of appellant would have been proved, the question of
plea of alibi cannot be touched.
15. The testimony of panchas would be sufficient to prove the
panchnamas, but on the basis of those panchnamas only we
cannot arrive at a finding that accused No.1 - appellant is the
only author of the crime. At the cost of repetition, it can be said
that though there were differences between accused No.1 and
deceased prior to the incident, the prosecution itself has led the
evidence to show that those differences existed but due to
successful mediation a compromise had arrived at and Savita
had resumed cohabitation. If Savita had resumed cohabitation
then why the ill-treatment would have been continued. It has
also come on record that Savita had not begotten issue even
after about ten years of the marriage, but it is to be noted that
her relatives themselves have stated that upon the medical
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check up, it was found that there was biological problem in the
appellant - accused No.1 and not that of the deceased. Then it is
hard to believe that Savita would have been harassed for not
able to conceive. Even if we consider Article 'A' in collective
Exhibit-108, which was the complaint filed by Savita with the
Women's Grievance Redressal Forum, she had come with the
different story saying that she was treated properly for about six
months but thereafter the accused persons started harassing her
for bringing Rs.5,00,000/- for purchasing a Jeep. There is
absolutely no statement in the entire complaint that the
harassment was on account of not able to conceive. Therefore,
the FIR Exhibit-19 travels beyond the said Article 'A' from
collective Exhibit-108.
16. To sum up, it can be certainly said that the prosecution had
failed to prove that deceased Savita was in the company of the
appellant at the night time or in the early morning hours of 1 st
September 2015, so that Section 106 of the Indian Evidence Act
can be pressed into service. The prosecution has not examined
material witnesses who had allegedly heard the quarrels
between accused Nos.1 and 2 and deceased Savita and then
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seen accused Nos.1 and 2 going away by latching the door of the
house from the outside and then informing it to PW-1 Dinanath.
The chain of circumstances has not been proved beyond
reasonable doubt and whatever the segments of the chain have
been proved, those are not pin-pointedly establishing that the
appellant is the culprit. An intention to kill has not been proved
and therefore, it cannot be said that the basic ingredients of the
offence have been proved beyond reasonable doubt, though it
can be certainly said that the death of Savita was homicidal in
nature. The Appeal, therefore, deserves to be allowed by setting
aside the impugned order. Hence we proceed to pass following
order:-
ORDER
I. The appeal stands allowed.
II. The conviction awarded to the appellant Ramesh
Bhanudas Shelke in Sessions Case No. 05 of 2016 by
learned Additional Sessions Judge, Nilanga, District
Latur, on 14.05.2018 for the offence punishable under
Section 302 of the Indian Penal Code is hereby quashed
and set aside.
III. The appellant stands acquitted of the offence
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punishable under Section 302 of the Indian Penal Code.
IV. The appellant be set at liberty, if not required in
any other case.
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 of disposal of muddemal.
VII. Fees of the appointed Advocate 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
