Bombay High Court
Vinayak S/O. Maroti Dhawale vs The State Of Maharashtra on 5 February, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:2502-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 828 OF 2019
Vinayak Maroti Dhawale
Age: 35 years, Occu.: Agri.,
R/o Sawargaon, Tq. Jintur,
Dist. Parbhani ..APPELLANT
VERSUS
State of Maharashtra
Through Police Station Officer,
Police Station Charthana,
Dist. Parbhani ..RESPONDENT
....
Mr. A.S. Kulkarni, Advocate for appellant (appointed through Legal Aid)
Ms. U.S. Bhosale, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ
RESERVED ON : 29th JANUARY, 2024
PRONOUNCED ON : 05th FEBRUARY, 2024
JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. The appellant has been convicted for murder of his wife vide order
dated 05th May, 2018 passed by Sessions Judge, Parbhani in Sessions Case
No. 153 of 2015, and therefore, sentenced to suffer life imprisonment and
fine with default stipulation. He is, therefore, before us in this appeal.
2. Facts giving rise to the present appeal are as follows :-
The appellant had married Kavera (deceased) fifteen years before
the incident i.e. April 2015. The couple was blessed with two children, son -
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Ganesh (P.W.4) and daughter - Shivkanya. All of them were residing at
village Sawargaon. It is the case of the prosecution that deceased - Kavera
was religious. Programs of Bhajans and Haripath (religious discourse) used
to be held at her residence. The deceased used to go on pilgrimage
alongwith her fellows. The appellant did not like the same. He was not
religious. On 22nd April, 2015 there was Bhajan and Haripath at the house of
the appellant. After the program was over, the family members took dinner
and then went to sleep. It is the case of the prosecution that there was
quarrel between the appellant and the deceased. The appellant assaulted the
deceased on her head with a grinding stone. The deceased succumbed
thereby. The appellant, taking his son Ganesh (P.W.3), went to the house of
his brother - Baliram (P.W.5).
3. It is also the case of prosecution that the appellant informed his
brother-in-law, P.W.8 - Tulshiram on phone that he had quarrel with Kavera,
and therefore, he killed her. Tulshiram, in turn, informed the same to his
brother, P.W.1 - Prabhakar and asked him to go to the house of the appellant.
P.W.1 - Prabhakar accordingly went to village Sawargaon. He noticed his
sister - Kavera had died of head injury. He, therefore, with the assistance of
local persons, took the dead body to the hospital. He, thereafter lodged the
F.I.R. (Exh.12) against the appellant.
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4. A crime, vide C.R. No. 33 of 2015 was registered. The appellant
was arrested. Scene of offence panchanama (Exh.29) was drawn. Mortal
remains of Kavera were subjected to postmortem. Statements of the persons
acquainted with the facts and circumstances of the case were recorded. Upon
completion of investigation, charge-sheet came to be filed. The case was
committed to the Court of Session, Parbhani ('trial Court') for trial in
accordance with law.
5. The trial Court framed charge (Exh.5). The appellant pleaded not
guilty. His defence was of false implication. The prosecution examined ten
witnesses and produced in evidence certain documents, to bring home the
charge. The trial Court, on appreciation of evidence, convicted the appellant.
6. Learned counsel for the appellant would submit that the F.I.R. has
been lodged on the basis of suspicion. The appellant alongwith his son,
P.W.4 - Ganesh was not home on the fateful night. The house, wherein the
appellant would reside alongwith his family members, was a big one. There
was a square open to sky. A stranger could easily have access to the house.
The deceased died at the very place. The crime must have been committed
by someone else. According to learned counsel, evidence of P.W.4 - Ganesh
is unreliable. He was under influence of his maternal uncle (P.W.1 -
Prabhakar). According to learned counsel, based on such quality of evidence,
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the trial Court ought not to have convicted the appellant. He, therefore,
urged for allowing the appeal.
7. Learned A.P.P. would, on the other hand, submit that the case is
based on eye witness account. P.W.4 - Ganesh, son of the appellant, had
seen him hit his mother with a grinding stone. A twelve year old son has no
reason to testify against his own father. There is also evidence to indicate
that the deceased was very religious. The programs of Bhajan and Haripath
used to take place at her residence. She even used to go on pilgrimage with
her fellows. The appellant disliked the same. This was the motive for the
appellant to eliminate his wife. According to learned A.P.P., the deceased
was at her matrimonial house. The appellant did not offer any reasonable
explanation to make out his innocence. According to learned A.P.P., no
interference with the impugned order is warranted. She, therefore, urged for
dismissal of the appeal.
8. Considered the submissions advanced. Let us advert to the
evidence relevant for deciding the present appeal.
9. The appellant had married Kavera (deceased) about fifteen years
before the fateful day. The couple was blessed with two children, son -
Ganesh (P.W.4) and daughter - Shivkanya. The house, wherein they would
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reside, was a big one. There is a square open to the sky at the middle of the
house. Deceased - Kavera was religious. The appellant was said to be
atheist. Admittedly, programs of Bhajans and Haripaths used to take place at
the house of the appellant at the instance of the deceased. The appellant did
not like the same.
10. On the intervening night of 22nd and 23rd April, 2015, Kavera met
with homicidal death at her residence. Postmortem report (Exh.14) suggests
she died of cardio respiratory arrest due to hemorrhagic shock due to head
injury. The scene of offence panchanama (Exh.29) indicates that the deceased
died at the place which was open to sky in the house of the appellant.
11. The question is whether the appellant is guilty of uxoricide. P.W.1
- Prabhakar, brother-in-law of the appellant (brother of the deceased) lodged
the F.I.R. (Exh.12). It is in his evidence that his brother, P.W.8 - Tulshiram
informed one Babasaheb Niwalkar that there was a quarrel at the house of
the appellant and he asked the informant to visit the appellant's house to see
what the matter was. P.W.1 - Prabhakar, therefore, went to the house of the
appellant to find his sister dead. She had suffered head injury. A blood
stained grinding stone was lying by her side. He thereafter lodged the F.I.R.
(Exh.12) against the appellant.
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12. P.W.1 - Prabhakar is admittedly not an eye witness. His evidence
is only relevant for setting the criminal law in motion by lodging the F.I.R.
His response to the questions put to him during his cross-examination runs
counter to the prosecution case. It is in his evidence that relationship
between the appellant and his wife (deceased) was good i.e. the deceased
never made any complaint against the appellant to him or any other relative.
Her house was a big one having hall and open space. She was religious in
nature and would like to do the religious work. She would like to sing
Bhajans and read Haripath and even on many occasions arranged said
programs at her residence. The said program would start at about 06:00 p.m.
to 07:00 p.m. Same would last only for two hours, but not till midnight.
Several people used to attend those programs. P.W.1 - Prabhakar himself
had attended those programs many a time. The deceased used to go on
pilgrimage alongwith the other peoples, who used to join Bhajan at her
residence. He further testified that the appellant never participated in the
religious activities of the deceased, though present in the house. The
appellant owns an agricultural land adjacent to the village.
It is further in his evidence that on the night of the incident, the
appellant and his children were not at their home. They went to the house of
P.W.5 - Baliram for sleeping. There was Bhajan and Haripath at the
residence of the deceased on the fateful night. When he reached at the house
of the appellant, P.W.5 - Baliram and one Dnyanoba (brother of the
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appellant) were present there. They had latched the door of the said house
from outside. When he entered the house, he found dead body of the
deceased lying in open space of the house. The said house was situated in
thickly populated area. There were two doors towards South side and one
door towards West side of the the house of the appellant. He had not verified
situation of other two doors. He testified that from the adjacent houses
anybody can enter in the open space of the said house. Thereafter they went
to his village, Mola. There they decided to lodge report against the appellant
and also what type of case to be filed.
13. P.W.3 - Amol is a Police Constable, who carried the muddemal
articles to the Forensic Science Laboratory, Aurangabad. His evidence is of
not much importance. P.W.4 - Ganesh, son of the appellant, testified that he
was in sixth standard at the relevant time. On the day of the incident, there
was Bhajan and Haripath at the house by 06:00 p.m. The same was over by
08:00 p.m. His sister - Shivkanya was away at their uncle's house. He
alongwith his parents took dinner by little past 08:00 p.m. He then went to
sleep in the house. It is further in his evidence that there was quarrel
between his parents (appellant and the deceased). He did not know reason
behind the quarrel. On the fateful night he heard noise of quarrel. He saw
the appellant assaulted his mother. Then the appellant took him to his
uncle's house (P.W.5 - Baliram).
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14. From examination-in-chief of this witness, it may appear the
offence to have been proved. His response to the questions put to him in his
cross-examination, however lead us to held him to be not reliable witness. It
is in his evidence that after the dinner there was happy atmosphere in the
house. He was confronted with his police statement wherein it has been
stated that he alongwith the appellant went to sleep outside their house. The
same suggests that he was not in the house while the incident took place. It
is further in his evidence that his maternal uncle, P.W.1 - Prabhakar took him
and his sister to his house at Mola after the incident. He had accompanied
his maternal uncle to the Court on the day his evidence was recorded. P.W.1
- Prabhakar narrated him what was deposed to by him in the Court. P.W.4 -
Ganesh went on to state that P.W.1 - Prabhakar had asked him to depose
consistent with his (P.W.1) evidence. It is further in his evidence that P.W.1
- Prabhakar did not allow him and his sister to meet their father (appellant)
for many days post incident. His statement was recorded by police while he
was at the house of his maternal uncle, P.W.1 - Prabhakar. Both, the
maternal uncle and his wife were present during recording of his statement.
He was confronted with his police statement. His statement is silent to
record that there was quarrel between the appellant and the deceased for
two-three days immediately before the fateful day. It has further been
recorded in his statement to the police that when he woke up on the
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following day, he found himself to be at the house of his uncle, P.W.5 -
Baliram.
15. Close scrutiny of the evidence of P.W.4 - Ganesh indicates that he
was under influence of his maternal uncle, P.W.1 - Prabhakar. He was
sleeping outside his house alongwith the appellant while the incident took
place in the house. His evidence before the Court appears to have been
influenced by P.W.1 - Prabhakar. We, therefore, find evidence of P.W.4 -
Ganesh to be not fit to act upon.
16. P.W.5 - Baliram, brother of the appellant did not stand by
prosecution. Same is the case of P.W.6 - Dhondiba, appellant's neighbour.
P.W.7 - Dyaneshwar was a witness to the scene of offence panchanama
(Exh.29).
17. P.W.8 - Tulshiram, brother-in-law of the appellant testified that
the appellant had informed him on phone to have killed his wife. He,
therefore, called one Balaji, resident of Sawargaon to inform the same to his
brother, P.W.1 - Prabhakar. His evidence indicates the appellant to have
made him extra judicial confession. It needs no mention that the extra
judicial confession is a weak piece of evidence. Had the appellant really
made the same to P.W.8 - Tulshiram, he (P.W.8) would have immediately
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rushed to the house of his sister. P.W.1 - Prabhakar's evidence indicates that
P.W.8 - Tulshiram had only asked one Balaji to inform him that there was
quarrel at the house of the appellant and he should go there to find what the
matter was. Investigating Officer did not take pain to place on record CDR in
relation to the so called phone calls between the appellant and P.W.8 -
Tulshiram during which the appellant said to have made extra judicial
confession. P.W.8 - Tulshiram has further testified that he was asking the
appellant to transfer his property in the name of his (appellant's) children.
The appellant did not listen. P.W.8 - Tulshiram, being brother of deceased -
Kavera, is presumed to have every reason to give evidence against the
appellant. For want of CDR and the fact that had the appellant related him to
have killed his (appellant's) wife, he would immediately have rushed to the
house of the appellant to see what the matter was. Furthermore, he had
asked his brother, P.W.1 - Prabhakar to have learnt that there was quarrel
between the appellant and his wife (deceased) and he shall go there to see
what the matter was.
18. In short, P.W.1 - Prabhakar (informant) was not an eye witness to
the incident. His evidence in cross-examination runs counter to the
prosecution case. P.W.4 - Ganesh's evidence found to have been influenced
by his maternal uncle, P.W.1 - Prabhakar. Although the deceased met with
homicidal death at her matrimonial home, there is nothing to suggest the
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appellant to have been in her company sometime before she met with
homicidal death. There is evidence to indicate that the appellant alongwith
his son, P.W.4 - Ganesh were sleeping outside their house. The place
whereat the incident took place was accessible to anyone from outside. All in
all, the evidence on record falls short to bring home the charge beyond
reasonable doubt. The trial Court ought not to have convicted the appellant
relying on such kind of evidence. Interference with the impugned order of
conviction is, therefore, warranted. In the result, we pass the following
order:-
I) Criminal appeal is allowed.
II) Order dated 05th May, 2018 passed by Sessions Judge,
Parbhani in Sessions Case No. 153 of 2015 thereby
convicting the appellant for the offence punishable under
Section 302 of the Indian Penal Code and sentencing
therefor is hereby set aside.
(III) The appellant stands acquitted.
(IV) The appellant shall be set at liberty forthwith, if not
required in any other case.
(V) Fine amount paid, if any, be repaid to him.
(VI) Fees of Mr. A.S. Kulkarni, learned counsel appointed
through Legal Aid to represent the appellant, is quantified
to Rs.12,000/- (Rupees Twelve Thousand).
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
