Bombay High Court
Rameshwar S/O. Bhagwan Sonawane vs The State Of Maharashtra on 30 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:21573-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 31 OF 2022
Rameshwar Bhagwan Sonawane
Age: 27 years, Occu.: Driver,
R/o N-13, HUDCO, Aurangabad ..APPELLANT
VERSUS
State of Maharashtra
Through the Police Station Officer,
Police Station Begampura, Aurangabad
Tq. & Dist. Aurangabad ..RESPONDENT
....
Mr. S.G. Bobde, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ
RESERVED ON : 07th AUGUST, 2024
PRONOUNCED ON : 30th AUGUST, 2024
JUDGMENT ( R.G. AVACHAT, J. ) :
1. The appellant in this appeal takes exception to the judgment and
order of conviction dated 05th December, 2018 passed by the Court of
Additional Sessions Judge, Aurangabad in Sessions Case No. 148 of 2015.
Vide the impugned judgment and order, the appellant was convicted for the
offence punishable under Section 302 of the Indian Penal Code, and
therefore, sentenced to suffer imprisonment for life and to pay fine of
Rs.10,000/- with default stipulation.
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2. The facts, in brief, giving rise to the present appeal are as follows-
Appellant - Rameshwar and P.W.7 - Shivaji are the real brothers.
Rohini (deceased) was the wife of Shivaji. The couple was blessed with two
children, P.W.3 - Jayesh (11 years of age at the relevant time) and Kartik (5
years). All of them would reside in two rooms premises at N-13, HUDCO,
Aurangabad.
The appellant and Rohini were said to have emotional / extra-
marital relationship between them. The incident is dated 14 th April, 2015.
Two days before the incident, the appellant got married to Nandini. As per
the evidence of P.W.3 - Jayesh, son of the deceased, his mother - Rohini
picked up a quarrel with the appellant in the early morning of 14 th April, 2015
on account of he got married. He along with his father, P.W.7 - Shivaji, was
present while the quarrel was on. The appellant threw an electric stove on
the person of Rohini. She thereby suffered burns to her chest. The quarrel
was subsided on the intervention of some of the relations.
3. It was Sunday. The appellant was serving as a driver on a school
bus. Being a holiday, he was at the residence. His wife - Nandini went to
the house of her sister, who had come to take her at the request of the
appellant during quarrel. P.W.7 - Shivaji was serving with M.I.D.C., Waluj.
He left the house by 01:00 p.m. for his work place. Both, P.W.3 - Jayesh
and Kartik went out of the house for playing. As such, the appellant and
Rohini were the only persons in the house. Again some quarrel was said to
have ensued between the two. Little past 04:30 p.m., the appellant hurriedly
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left the house locking the house from outside with a different padlock. P.W.3
- Jayesh had seen him hurriedly leaving the place. Jayesh then came back
to the house to find the same to have been locked. He, therefore, alongwith
his younger brother Kartik went to the house of his grand parents (Baviskar)
for overnight stay. P.W.7 - Shivaji returned home after his work hours by
little past 01:00 a.m. He noticed the outer door of the house to have been
locked with a different padlock. He claimed to have remained in the balcony
until sunrise. He then went to the house of P.W.5 - Baviskar, whereat his
sons had taken shelter overnight. He came back alongwith them. He
opened the house by breaking the lock. Rohini was seen lying on the bed.
She had suffered multiple injuries. A red shirt with dislocated four buttons
thereof was found lying there beside her body. Somebody had informed the
police. The police patrolling van arrived. Rohini was shifted to Ghati
Hospital. The medical officer there declared her dead by 10:40 a.m.
4. Based on the report, a medico-legal case (MLC) was registered.
Panchanama of the place of the incident (Exh.18) was drawn. Inquest
(Exh.32) was conducted. Mortal remains of deceased - Rohini was
subjected to postmortem examination. The postmortem report (Exh.65)
indicates she died of asphyxia due to smothering and strangulation. The
dead body was received. Same was taken to village. After the dead body to
have been consigned to flames, family members and relations returned back
to Aurangabad. PW 2 - Dnyaneshwar, uncle of the deceased, lodged the
FIR (Exh.42) against the appellant on 16th April 2015. The appellant,
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therefore, came to be arrested. All the seized articles were sent to the
Regional Forensic Science Laboratory, Aurangabad for analysis and report.
Statements of the persons, acquainted with the facts and circumstances of
the case, were recorded. Upon completion of investigation, the charge-sheet
was filed against the appellant.
5. The trial court framed the charge (Exh.4). The appellant pleaded
not guilty. His defence was of false implication. To bring home the charge,
prosecution examined twelve witnesses and produced in evidence certain
documents. On appreciation of the evidence in the case, the trial court
convicted the appellant as stated above. According to the trial court, the
appellant was the last person in the company of the deceased. The last
scene theory was, therefore, invoked. The trial court relied on the evidence
of a child witness. According to the trial court, failure to prove motive is
always not fatal, even in the case based on circumstantial evidence.
6. Learned counsel for the appellant would submit that the FIR
(Exh.42) was lodged after about two and half days of the incident. The
informant admitted to have lodged the same on suspicion. The case was
based on circumstantial evidence. On the following day i.e. 15th April, the
appellant reported on duty. The appellant did not abscond. As such, his
conduct is consistent with innocence. When the appellant was said to have
extra-marital relationship with the wife (deceased) of his brother, he had no
reason to kill her. Even the police had suspected involvement of PW 7 -
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Shivaji, husband of Rohini, in the crime. He had returned to his house by
little past 1:00 a.m. His case that he remained or slept in the balcony till
sunrise, is an unnatural conduct. He had seen the house to have been
locked with a different padlock. His children and wife were not around. He
could have made hue and cry. He could have woken up the neighbours. He
could have immediately approached Baviskar, whereat his children slept
overnight. He claimed to have opened the house by breaking the lock.
When did he break the lock and in whose presence is not there in the
evidence. The appellant could have broken the lock at least in the presence
of some independent person. He being the husband of the deceased, who
had illicit relationship with the appellant, had every motive to kill his wife. The
postmortem report (Exh.65) did not indicate the time at which the deceased
breath her last. She was rushed to the hospital little past 08:00 in the
morning. The medical officer there declared her dead by 10:40 a.m. Same
suggests that there was life in Rohini. As such, it was her husband who was
lastly in the house. Learned counsel would submit that the other prosecution
witnesses kept mum for over two days when they had an opportunity to
relate the incident to the police at the earliest. He, therefore, urged for
allowing the appeal.
7. Learned A.P.P. would, on the other hand, submit that the
appellant had extra-marital relationship with his sister-in-law (real brother's
wife). He even beat her up in the presence of her husband. Same suggests
that he was dominating Rohini (deceased). P.W.7 - Shivaji, husband of the
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deceased, left for work place at 01:00 p.m. It being Sunday, the appellant
was at his residence. Since both the children were playing outside, the
deceased and the appellant were the only persons in the house. There must
have been scuffle between the two. Admittedly, the red shirt, which was
found at the crime scene, belonged to the appellant. Four buttons thereof
were found dislocated. According to him, the appellant even made an extra-
judicial confession to P.W.2 - Dnyaneshar. The appellant came with a false
defence to have left the house alongwith his wife, when P.W.5 - Chhaya,
sister of Nandini testified that she was called by the appellant to take Nandini
to her home. P.W.3 - Master Jayesh was not of such age as to not to
understand the matter. He was 11 years of age at the relevant time. He had
seen the appellant leaving the house hurriedly. According to learned A.P.P.,
the trial Court, on appreciation of the evidence, has rightly convicted the
appellant. He, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused the evidence on
record. Also perused the judgment impugned herein. Let us advert thereto
and appreciate the same.
9. P.W.10 - Dr. Darandale was the Medical Officer in Government
Medical College and Hospital, Ghati, Aurangabad. He conducted postmortem
examination of the mortal remains of Rohini between 02:00 p.m. to 03:00
p.m. on 15th April, 2015. He noticed following external injuries on the person
of the deceased :-
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"1. abrasion of size 1.5cm x 1 cm over left zygomatic region of face,
1.5 cm below lower eye-lid, dark reddish,
2. an abrasion of 1.5cm x 1 cm over right zygomatic region of face,
1.5 cm below lower eye-lid, dark reddish,
3. contusion of size 2cms x 2cms over right zygomatic region of face,
2 cm below lower eye-lid, reddish,
4. an abrasion of size 2 cm x 1 cm over root of nose, midline, dark
reddish,
5. three abrasions of each of size 0.3 cm x 0.2 cm present over left
nostrium, placed 0.2 cm apart from each other, oblique, dark
reddish.
6. an abrasion of size of 0.4cm x 0.3 cm over interior aspect of nasal
septum, midline, reddish,
7. an abrasion of size 0.2 cm x 0.2 cm over inner aspect of right side
of upper lip, middle 1/3rd, reddish,
8. lacerated wound of size 2 cm x 2 cm, x mucosa deep was present
on inner aspect of lower lip on left side, reddish,
9. lacerated wound of size 1.2 cm x 0.5 cm x muscle deep was
present 1 cm below lower lip and 1 cm from midline on left side,
reddish,
10. five semilunar shaped abrasions of size varying from 0.2 cm to 0.3
cm were present over right cheek over an area of 5 cm x 4 cm,
dark reddish,
11. semicircular shaped abrasion of size 5.5 cm x 1 cm was present
over left cheek, dark reddish,
12. an abrasion of size 1.5 cm x 1.5 cm present over left cheek, 1 cm
below injury No.11, dark reddish,
13. an abrasion of length 2.5cm x 1 cm was present over middle 1/3rd
of right neck on right side, 3 cm from midline, dark reddish,
14. three abrasions of each of size 1 cm x 0.4 cm present over neck on
right side, lateral aspect, 5.5 cm from right angle of mandible, dark
reddish,
15. two abrasions of size 1cm x 0.5 cm present over neck on right side,
lateral aspect, below right angle of mandible, 2 cm lateral to injury
No.14, dark reddish,
16. a superficial thermal burn present over chest in midline over an
area of 14 cm x 4 cm reddish with yellowish base,
17. an abrasion of size 1 cm x 0.3 cm present over middle of left ring
finger, extensor aspect, dark reddish,
18. an abrasion of size 1 cm x 0.3 cm present over middle of left index
finger, extensor aspect, dark reddish,
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19. two abrasions of size 0.5 cm x 0.5 cm present over left elbow,
lateral aspect, dark reddish,
20. four intermingled, scratch abrasions of size varying from 7 cm x 0.2
cm to 4 cm x 0.1 cm were present over left forearm, 6.5 cm from
wrist joint, horizontal, flexor aspect, dark reddish,
21. two abrasions of size 1.5 cm x 1 cm over right knee, reddish,
22. an abrasion of size 4. cm. x 0.2 cm present over right thigh,
posterior aspect, 17 cm from knee joint, reddish
23. an abrasion of size 5 cm x 0.5 cm present over gluteal region,
oblique, reddish"
In his opinion, the deceased died of asphyxia due to smothering
and strangulation.
10. P.W.10 - Dr. Darandale, Medical Officer was not subjected to
cross-examination. As such, the fact that the deceased met with homicidal
death is a fact not in dispute. The question is, whether the appellant was the
author of the crime. Since the case is based on circumstantial evidence, one
must refer to the decision of the Apex Court in the case of Anwar Ali and
Anr. Vs. State of Himachal Pradesh, 2021 AIAR (Criminal) 80, wherein, it
is observed thus :-
B. Circumstantial evidence - Scope and sweep of - In case of a
circumstantial evidence - The circumstances, taken cumulatively -
Should form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was committed
by the accused and none else and the circumstantial evidence in order
to sustain conviction must be complete and - Incapable of explanation
of any other hypothesis than that of the guilt of the accused and - Such
evidence should only be consistent with the guilt of the accused but
should be inconsistent with his innocence.
11. In the present case, following are the circumstances sought to be
relied on to bring home the charge :-
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(i) Homicidal death;
(ii) Motive;
(iii) Extra-marital relationship between the appellant and
the deceased;
(iv) Last seen theory;
(v) Extra-judicial confession;
12. Admittedly, the appellant, his brother Shivaji (P.W.7), his wife
(deceased) and their two children would reside together in a two room
premises owned by P.W.1 - Sandu. The appellant in his written statement,
submitted in his examination under Section 313 of Code of Criminal
Procedure, admitted to have had extra-marital relationship with the wife
(deceased) of his real brother- Shivaji. There is also evidence of the
relations of both, the appellant and Shivaji, to indicate such relationship and
both were even reasoned with to discontinue such relationship. Just two
days before the incident i.e. on 12th April, 2015, the appellant got married
with Nandini. Admittedly, a quarrel had ensued between the appellant and
deceased - Rohini in the early morning of 14th April. P.W.3 - Jayesh, then
eleven years old child of the deceased, testified that his mother had picked
up quarrel with the appellant on account of the appellant got married. We,
therefore, find that the deceased was deeply involved with the appellant.
True, P.W.7 - Shivaji in his evidence testified that a quarrel was ensued on
account of the appellant expressed his desire to make a separate residence
in view of he having been married just two days before. The deceased
picked up a quarrel with him as the marriage expenditure was incurred by her
husband - Shivaji and she wanted the appellant to pay up the same and the
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expenses of grocery. In our view, this might have been deposed to by P.W.7
- Shivaji as a face-saving exercise. Be that as it may.
13. PW 1 - Sandu is a witness to the crime scene panchnama (Exh.
18). The crime scene is a front room of the house wherein the appellant
would reside along with his brother - Shivaji. From the crime scene, a red
colour shirt, four black and white buttons, human hair, bindi, pink colour
saree and a pillow were seized.
14. The appellant admitted the red colour shirt to have belonged to
him. According to prosecution, while both the deceased and the appellant
were the only persons in the house, a quarrel-cum-scuffle must have taken
place between them. Four buttons of his red shirt thereby got dislocated,
whereas according to the appellant he was sporting the said shirt since
morning. Admittedly, there was a quarrel between him and the deceased in
the early morning on 14th April. According to PW 3 - Jayesh and PW 7 -
Shivaji, the appellant had thrown an electric stove on the person of Rohini.
To the said incident, it appears that Shivaji remained silent. The said
incident had occurred in the kitchen room. The appellant's contention that in
the morning incident the buttons got dislocated, therefore, could not be ruled
out. True, the red shirt and the four buttons were found on the bed in the
front room. The incident of quarrel and even assault by the appellant on the
deceased is not the subject matter of the charge.
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15. Admittedly, it being a Sunday, the appellant had holiday. He was
a driver on bus owned by Lakshminarayan Bus Services. The prosecution
had examined PW 8 - Amit and placed on record the attendance register. On
14th April, being a holiday, the appellant was admittedly at his residence. PW
7 - Shivaji being employed in MIDC, had a working day. PW 11 - Atul was
examined by the prosecution to indicate PW 7 - Shivaji reported on duty for
his second shift on the given day i.e. on 14th April 2015. The shift timing was
from 2:30 p.m. to 1:30 a.m. There is no dispute that Shivaji had reported on
the duty at Waluj MIDC area.
16. The F.I.R. (Exh.42) was lodged by uncle of the deceased on 16 th
April 2015 i.e. little over two days after the incident. The evidence of PW 2 -
Dnyaneshwar indicates that he rushed to the house in response to a call
made by PW 1 - Sandu. He reached the spot by 7:15 in the morning on 15 th
April. PW 1 - Sandu, however denied to have ever made any such call. He
even testified to have had no acquaintance with PW 2 - Dnyaneshwar before
15th April 2015. Be that as it may. While PW 2 - Dnyaneshwar reached the
house, he saw Rohini lying on the cot. A pillow and red shirt was also there.
He noticed one electric stove lying thereat. Police also arrived. He and
others took Rohini to Ghati Hospital. The doctor there declared her dead by
little past 10:30 a.m. According to him, he made enquiry with PW 3 -
Jayesh, who related him the incident of quarrel that took place between the
appellant and his mother (deceased) on the early morning of 14 th April. The
quarrel was over the appellant to have got married. Whatever PW 2 -
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Dnyaneshwar has deposed to is nothing but the matter that was related to
him by P.W.3 - Master Jayesh. The same being hearsay, we do not propose
to reproduce the same in extenso. Needless to mention, same would be
referred to while appreciating the evidence of PW 3 - Master Jayesh.
17. PW 2 - Dnyaneshwar admitted in his cross-examination that he
lodged the FIR against the appellant on suspicion. His evidence further
indicates that admittedly the crime scene panchnama (Exh.18), inquest
(Exh.32) and even postmortem examination were conducted during enquiry
of unnatural death. It is not known on the basis of whose report MLC was
registered. Admittedly, the police had arrived at the spot in the early morning
of 15th April. None of the police official, who had paid visit to the house, has
been examined. PW 2 - Dnyaneshwar further testified that dead body was
taken to the village for funeral. On return from village, there was discussion
between him, PW 7 - Shivaji and PW 3 - Jayesh and then he lodged the
report against the appellant on suspicion.
18. PW 4 - Vandana is the wife of PW 2 - Dnyaneshwar (informant).
Her evidence is more or less similar to that of her husband, because she had
accompanied him to the house of the deceased in response to a call made
by her landlord.
19. Fate of the case is based on the evidence PW 3 - Jayesh, an
eleven year old child at the relevant time. He being a child witness,
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necessarily his evidence is to be taken with a pinch of salt and one needs to
find some corroboration to his evidence. Moreso, when he gave his
evidence before the Court three years after the incident. He gave his
statement to police on 16th April i.e. two days after the incident. We propose
to reproduce the evidence of PW 3 - Jayesh. Before adverting thereto, the
record indicates the trial Court had put him certain questions to find him to be
a competent witness. Since he understood sanctity of oath, the trial Court
administered him oath before recording the evidence. It is in his evidence
that on 14th April there was a quarrel between the applicant and his (Jayesh)
mother on the ground of appellant (his uncle) performed marriage. The
appellant tride to set his mother on fire. The mother herself extinguished fire
by pouring water. He had narrated the incident to his grandparents,
Sangitabai and Ambadas Baviskar. Both of them came to the house and
convinced the appellant and his mother. It is further in his evidence that his
father Shivaji left the house for his work place by 1:00 p.m. Thereafter there
was again quarrel between the appellant and his mother. The appellant was
sporting red colour shirt. He then went out of the house for playing. His
younger brother was with him. Thereafter the appellant locked the house
from outside and went away hurriedly. He told this incident to his grand-
parents (Baviskar). It is further in his evidence that he went to the house of
his grand-parents by 10:00 p.m. In the morning, he came back to his house.
He saw his father PW 7 - Shivaji present outside the house. Shivaji broke
open the lock. Then he noticed his mother lying on the cot. Aforesaid is the
evidence of Master Jayesh in his examination in chief.
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20. He was subjected to a searching cross-examination. It appears
being a child witness, he was not consistent or not coherent. It was brought
on record during his cross-examination that a quarrel had taken place by
06:00 in the morning of 14th April, 2015. Both, Sangitabai and Ambadas had
come to the house by little past 09:00 a.m. Both of them were not residing
adjacent to his house. He denied that his mother burnt her veil (pallu - part
of Sari) on the burner. The quarrel between his mother and the appellant
took place in the back side room. According to the prosecution, during this
quarrel the appellant had thrown an electric stove on her person. When the
quarrel took place between the two, he was present alongwith his father by
the side of his mother. There was no scuffle between him and his father on
one hand and the appellant on the other. He gave vital admission that the
appellant was in the house upto 01:00 pm. On the given day, he went out of
the house by 04:30 pm. After the morning quarrel, there was no quarrel
between the appellant and the deceased in his presence. He finished his
play by 05:30 p.m. He went back to his house and noticed the same was
locked. The padlock applied on the door was not their usual lock of daily
use. He went on to state that when he saw his house to have been locked,
he was aware that his mother was in the house. He did feel to get his mother
out of the house. He did not make attempt to break the lock. Adjacent to
their house, there were houses of other people. It was only one month
before the incident they had come to reside in the said house. However, he
was in the know of his neighbours. He asked for help from the neighbours to
get his mother out of the house. He told the neighbours that his uncle
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confined his mother inside the house. Although he thought that he should
report the same to his grand-parents - Sangitabai and Ambadas, he did not
come to their residence immediately. His father was using a cell phone. He
(father) used to deposit his cell phone at the gate of his company (work
place). He, therefore, did not call his father to rescue his mother. The
evidence of PW 7 - Shivaji, however indicates that he had no cell phone.
21. It is further in his evidence that he had told Sangitabai and
Ambadas that his mother was confined in the house by the appellant.
According to him, both of them told that his mother might have slept or might
not have been feeling well and they would see his mother in the morning.
He, however admitted that the aforesaid explanation was given by him for the
first time. It is further in his evidence that on the following day he got up by
06:00 in the morning. He came to his house. His younger brother - Kartik
accompanied him. Father was there. The lock was broken open. They then
secured entry in the house. Thereafter he informed his grand-parents, who
arrived after a while. According to him, it did not happen that he came to his
house alongwith Sangitabai and Ambadas and saw his father was there.
Then he again testified that his father was not there. According to him, the
police were making enquiry in respect of his mother. They were also making
enquiry regarding cause of death and the culprits and names of the persons
whom they did suspect. He was confronted with his statement recorded
under Section 164 of the Cr.P.C. and particularly the portion marked 'A' i.e.
what the appellant did to his mother in the evening; (dkdkus la/;kdkGh dk; dsys
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gs ekfgr ukgh- ijarw dkdk ?kjkyk dqywi ykowu iGwu xsyk). He stated to have had not
informed the Magistrate in his statement that the appellant had sported red
colour shirt. After having seen his house to have been locked, he went to the
house of his grand-parents.
22. If we appreciate the evidence of Master Jayesh, will find him to be
not consistent. True, it might be due to his age. At one time he is stated the
appellant to have left the house by 01:00 p.m. His evidence would further
indicate that by 05:30 p.m. onwards he was in the know of his mother to have
been confined in the house. He even approached his neighbours. None of
them has been examined. According to him, he did not inform his father on
phone since the father used to keep his cell phone at the gate of his
workplace, while his father testified to have not been using cell phone. His
evidence indicates that he alongwith his younger brother - Kartik returned to
his residence, while PWP 7 - Shivaji testified that it was he, who went to the
house of Sangeetabai and Ambadas and came back with his children to his
residence. We will advert to the evidence of PW 7 - Shivaji a little later.
Admittedly, the police had been to the house. That time Master Jayesh was
around. He did not relate the police anything. The police recorded his
statement on 16th April, i.e. post registration of the F.I.R. PW 5 - Ambadas is
stated to be the grandfather of Master Jayesh. It appears that he was a
distant relative, since his evidence indicates deceased - Rohini was the niece
of his wife. It is in his evidence that there was illicit relationship between the
appellant and Rohini (deceased). Both of them were reasoned with to
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disassociate from each other, but in vain. Quarrel used to take place
between them. It was therefore, decided to perform marriage of the
appellant. Nandini was given to the appellant in marriage on 12 th April 2015,
i.e. two days before the incident. Nandini is the daughter of his step-brother.
It is further in his evidence that he went to the house of Rohini in response to
a call. There was a quarrel between the two over marriage expenses. He
subsided the quarrel assuring Rohini that the appellant would pay the money
on receipt of his salary. It is further in his evidence that Master Jayesh told
him about the quarrel that took place in the morning. The appellant had
thrown an electric stove on the person of Rohini. It is further in his evidence
that in the evening, specifically by 06:00 p.m., he received a phone call of the
appellant informing him that the quarrel was permanently settled and that
thereafter their would not be any quarrel.
23. This piece of evidence was proposed to be set up by the
prosecution as an extra-judicial confession made by the appellant informing
PW 5 - Ambadas to have done away with Rohini. Although some sense in
that regard might have been appearing therefrom, it is not that the appellant
in so many words informed PW 5 - Ambadas to have committed murder of
Rohini. Admittedly, the statement of Ambadas was recorded by police on
18th April, i.e. four days after the incident. This witness had been to the
house of the appellant from day one of the incident i.e. from 14 th April. The
police were there while he was present. He even went to Ghati Hospital
while Rohini was shifted there.
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24. It is further in his evidence that both, Jayesh and Kartik had come
to his residence in the evening on the fateful day. They slept overnight there.
They had even informed him the appellant to have locked their mother in the
house and went away. It is further in his evidence that on the following
morning PW 7- Shivaji came to his house and enquired about whereabouts
of Rohini and his children. According to him, he told Shivaji that both Jayesh
and Kartik were at his residence, however, he did not know about Rohini.
His last sentence ought not to have been deposed to by this witness, when
according to him, both Jayesh and Kartik related him on the previous evening
itself that the appellant, after having confined their mother in the house, left
locking the door from outside. It is further in his evidence that PW 7 - Shivaji
and his both the children then went back to their residence. He thereafter
followed them.
25. He was subjected to a searching cross-examination. It was
brought on record that he did not enquire with Jayesh as to whereabouts of
his mother - Rohini, when both had come to his house on 14 th April late in
the evening. According to him, Jayesh on his own had told him about the
mother to have been confined in the house. According to him, he did not feel
that Rohini was in the house. He felt that Rohini and the appellant might
have gone out when Jayesh and his younger brother came to him. His
evidence indicates that he was present all along until the dead body was
taken to Ghati Hospital. It is only on 18 th April he gave his statement to
police i.e. four days after the incident. When this witness was in the know of
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everything from day one, he did not disclose the same to the police when he
had every opportunity to do so. It is in his evidence that there was
discussion between him and other relatives about the cause of death of
Rohini and thereafter the F.I.R. (Exh. 42) was lodged against the appellant
on suspicion. He was specific to state that the F.I.R. was lodged only on the
basis of what was related by Master Jayesh.
26. PW 7 - Shivaji was the husband of deceased - Rohini. It is in his
evidence that he had realised about the illicit relationship of the appellant
with his wife. He was at his residence on the morning of 14th April 2015. The
appellant got married on 12th April. There was quarrel between the appellant
and his wife (deceased) on account of marriage expenditure. The appellant
wanted to reside separately with his wife (Nandini). His wife (deceased)
asked the appellant first to pay the amount of grocery and then start residing
separately. The appellant, therefore, beat up his wife by throwing an electric
stove on her person. She thereby suffered injury to her chest. He tried to
convince the appellant. He was, however not ready to listen. Both, Ambadas
and his wife - Sangitabai came and settled the quarrel.
27. It is further in his evidence that he left the house by 01:00 p.m. for
his workplace and came back by little pass 01:00 a.m. He saw the house
was locked. A different padlock was put on the door. He tried to open the
lock, but failed. He, therefore, slept in the balcony. In the morning, he went
to the house of PW 5 - Ambadas. His both children were there. His wife
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was, however not there. He returned to his house with the children. He
broke the lock and opened the door to find his wife lying unconscious.
According to him, neighbours might have informed the police on phone. The
police arrived in no time. Rohini was shifted to Ghati Hospital.
28. During his cross-examination he testified that whenever someone
told anything to his wife, she would become annoyed. On the given day, his
wife was annoyed. She had cell phone with her. He did not have one. He
therefore, did not call his wife. It is only on 17 th April he gave his first
statement to police in respect of the allegations against the appellant, i.e.
three days after the incident and post registration of the F.I.R. According to
him, the police had suspected him to have committed murder of his wife. PW
12 - Shailesh was examined to prove that he installed CCTV cameras at a
shop, "Kumar Shirts". We do not propose to rely on his evidence in extenso
since the appellant admitted to have had purchased a red colour shirt from
the shop, "Kumar Shirts". We also do not propose to refer the evidence of
P.W. 9 - Yogesh, a salesman in the shop, "Kumar Shirts".
29. The C.A. report (Exh. 88), in respect of shirt and buttons, reads
thus :-
Description of articles contained in parcel/s
Ex.No.1) Buttons (4) in a polythene, in a packet labelled - EXBT "A"
Ex.No.2) Full open shirt in a packet labelled - EXBT "B"
Ex.No.3) Saree in a packet labelled - EXBT "C"
Ex.No.4) Blouse (burnt) in a packet labelled - EXBT "D"
Ex.No.5) Burnt cloth pieces in a polythene, in a packet labelled -
EXBT "E"
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Ex.No.6) Pillow wrapped in paper labelled - EXBT "F"
Ex.No.7) Hair wrapped in paper in a packet labelled - EXBT "G"
Ex.No.8) Hair (one) wrapped in paper, in a packet labelled-EXBT "H"
Results of Analysis
- Exhibit 6 has a few blood stains of about 0.5 cm to 1 cm in
diameter on one side.
- No blood is detected on exhibits 1, 2, 3, 4, 5,7 and 8
- Blood detected on exhibits 6 is human.
- Group of blood detected on exhibit 6 can not be determined as
the results are inconclusive.
- The morphological and microscopic examination of hair are as
follows -
- Hair in exhibits 7 and 8 are human hair and appear dissimilar
to human hair
- in exhibit 3 of ML Case No. Ba- 1244/15.
30. The trial Court has convicted the appellant on the basis of having
been the last person in the company of the deceased and failed to offer
explanation about the fact within his exclusive knowledge (Section 106 of the
Indian Evidence Act). It needs no mention that burden of proof of guilt of the
accused beyond reasonable doubt rests on the prosecution. What appears
herein is that the appellant has come with somewhat false defence. He
placed on record his written statement before the trial Court wherein he
testified that he left the house alongwith his wife. The same proved to be
wrong in view of testimony of PW 6 - Chhaya, real sister of Nandini. It is in
her evidence that on 14th April the appellant made her phone call and asked
her to take Nandini to her house. She, therefore, came to the house of the
appellant and took Nandini with her. This evidence of PW 6 went
unchallenged. The appellant, in examination under section 313 of Cr.P.C.,
admitted the question wherein the evidence of PW 6 - Chaya was put to him.
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The question is whether a false defence of having left along with his wife
would itself be sufficient to hold him guilty of the offence.
31. Admittedly, on the following day i.e. on 15 th April, the appellant
reported on duty. The same is in the evidence of PW 9 - Amit. Same
suggests the appellant did not abscond. As such, his conduct is not
inconsistent with his innocence. Testimony of sole witness viz. Master
Jayesh inspires no confidence, since he did not report the matter
immediately. It appears that it being a family matter, even the husband of the
deceased did not come forward to lodge the FIR against his real brother
Rameshwar (appellant). The F.I.R. was lodged two days after the incident,
that too after discussion amongst the family members and relations.
Testimony of Master Jayesh has been referred to herein above. The same
would speak for itself. We need not give independent reasons so as to not to
act upon his evidence.
32. On the contrary, the conduct of P.W.7 - Shivaji appears to be
doubtful. He returned to his house from duty by little past 01:00 a.m. He
saw the house to have been locked with a different padlock. His wife and
children were not around. According to Master Jayesh, his father had a cell
phone. The father, however denied to have one. Shivaji ought to have
woken up his neighbours to enquire about whereabouts of his family
members. Nor he visited the house of his in-laws (Basviskar) on the very
night. According to him, he slept in the balcony of the house. Those were
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the days of summer. He could have very well approached someone to break
open the lock in the presence of any independent person. As per the
prosecution case, the lock was broken open by Shivaji himself in the
presence of his son - Jayesh. It is not known as to why he did not break
open the lock immediately or approached the neighbours and or visited the
house of his in-laws. Admittedly, the police had suspected his involvement in
the commission of crime. He did not offer any explanation as to why he
broke open the lock on his own that too without reporting the matter to police
when according to him he first visited the house of Baviskar and returned
with his children to his house. By that time he was in the know that his wife
was inside the house. Even if we take the appellant left the house by 04:30
p.m. allegedly assaulting and smothering Rohini, she was unconscious until
she was shifted to Ghati hospital. She was declared dead on admission to
the hospital by 10:40 a.m. The rigor mortis had already set in fully. The
same indicates the death might have occurred within twelve hours before the
postmortem examination. The police had, therefore, a needle of suspicion
towards Shivaji. The reason therefor was obvious that he was tolerating his
wife's illicit relationship with his real brother (appellant) for over five years. It
needs no mention that in the case based on circumstantial evidence, each
and every circumstance needs to be proved upon the hilt. Same has not
occurred in this case. Post the appellant left the house, there is every
possibility that his brother Shivaji to have entered the house by breaking
open the lock in the night itself, soon after he returned from his work place.
His alleged conduct that he slept in the balcony overnight gives rise to very
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many speculations. It is reiterated that the F.I.R. was lodged against the
appellant on suspicion. It was lodged by a distant relative viz. uncle of the
deceased. When all the family members and even relations were allegedly
in the know the appellant to be the suspect, none of them expressed the
same for two days to any of the police official, who did enquiry into unnatural
death of Rohini. At the cost of repetition, it is stated that the F.I.R. was
lodged after discussion inter se the family members and their relatives as
well. Finding of red shirt with its four buttons dislocated would be in no way
lead us to infer the appellant to have smothered the deceased. Moreso,
when the evidence of Jayesh which has been referred to hereinabove itself
inspires no confidence, since in one breath he stated to have seen the
appellant leaving the house by 01:00 p.m. Although he was a child, he was
around eleven years of age, being an age of somewhat understanding. The
trial Court found him to be a competent witness. On appreciation of the
overall evidence on record, it remains a mystery as to who has killed Rohini,
whether the appellant or his brother (husband of the deceased), whose
involvement in the crime was initially suspected by police.
33. For all the aforesaid reasons, we reach to the conclusion that the
prosecution has failed to bring home the charge beyond reasonable doubt.
Interference with the impugned order of conviction and consequential
sentence is, therefore, warranted. Hence, the following order :-
ORDER
(I) Criminal appeal is allowed.
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(II) Impugned judgment and order dated 05th December, 2018
passed by the Court of Additional Sessions Judge,
Aurangabad in Sessions Case No. 148 of 2015 thereby
convicting the appellant for the offence punishable under
Section 302 of the Indian Penal Code stands set aside. He
stands acquitted thereof.
(III) The appellant shall be released forthwith, if not required in
any other case.
(IV) Fine amount paid, if any, be refunded to him.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
