Bombay High Court
Mohansing Mahavirsing Gaherwar vs The State Of Maharashtra on 5 March, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:6765-DB
Criminal Appeal No.671/2022
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.671 OF 2022
Mohansing Mahavirsing Gaherwar
Age 51 years, Occu. Agril. & Service,
R/o Madaj, Tq. Omerga,
District Osmanabad ... APPELLANT
VERSUS
The State of Maharashtra
(Copy to be served on P.P.,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. S.J. Salunke, Advocate for appellant
Mrs. U.S. Bhosle, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 29th February, 2024
Date of pronouncing judgment : 5th March, 2024
JUDGMENT (PER R.G. AVACHAT, J.)
The challenge in this appeal is to a judgment of
conviction and order of sentence, dated 6/8/2022, passed by
learned Additional Sessions Judge, Omerga, District Osmanabad in
Sessions Case No.1/2019. Vide impugned judgment and order, the
appellant was convicted for the offences punishable under Sections
302 and 498(A) of the Indian Penal Code and, therefore, sentenced
to suffer imprisonment for life and simple imprisonment for six
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months respectively and fine with default stipulations.
2. Facts giving rise to the present appeal are as follows :
Smt. Anusaya (deceased) was married to the appellant
in the year 1999. The couple was blessed with two children, a son
and a daughter. The daughter has been married. Son Shivam
passed H.S.C. examination and was admitted to B.C.A. (Bachelor
of Computer Applications) at Aurangabad. The appellant wanted
his son Shivam to be at Hyderabad for higher education. The
appellant's sister resides at Hyderabad. He wanted son Shivam to
stay at her residence. The appellant further wanted to give his
sister 2 acres of land in lieu of expenditure that she was to bear for
Shivam's education. Smt. Anusaya was opposed to such proposal.
There, therefore, used to be frequent quarrels between the couple.
It is also the case of the prosecution that, the appellant was
addicted to alcohol. He would ask his wife to fetch money from her
brother. He would ill-treat her for one or the other reason.
3. It is also the case of the prosecution that, on the
intervening night of 1st and 2nd October 2018, the appellant
committed murder of his wife by strangulation. The appellant
himself went to the Police Station and reported to have committed
murder of his wife. The Police Station Officer, in-chage, asked the
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Village Police Patil to verify the same. The Police Patil paid visit to
the house of the appellant to find his wife dead. He reported back
to the Police Station Officer, who in turn made a station diary entry
to that effect.
4. The Police Station officer reported the matter to the
Police Officer, In-charge of the Police Station. Smt. Sanap
(Assistant Police Inspector), therefore, paid visit to the house of the
appellant. The scene of offence panchanama (Exh.38) was drawn
in presence of panchas. Mortal remains of Anusaya was subjected
to autopsy. The inquest was also conducted therebefore.
Mohansing (P.W.1), the brother of the deceased came to the
village. After having realised the appellant to have killed his sister,
he lodged First Information Report (F.I.R. - Exh.29).
5. A Crime vide C.R. No.275/2018 was registered with
Omerga Police Station. The appellant was medically screened.
The appellant was arrested post registration of the F.I.R. Pursuant
to disclosure statement made by the appellant, a scarf came to be
seized from his residence. Statements of persons acquainted with
the facts and circumstances of the case were recorded. Upon
completion of the investigation, the appellant was proceeded
against by filing charge sheet.
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6. The case was committed to the Court of Sessions for
trial in accordance with law. It was assigned to the Court of
Additional Sessions Judge (Trial Court). Charge (Exh.20) was
framed against the appellant. He pleaded not guilty. It was his
defence that on the very night his father passed away. He was
present at the house of his father the entire night. According to him,
someone else committed murder of his wife.
7. The prosecution examined 16 witnesses and produced
in evidence number of documents. The Trial Court, on appreciation
of the evidence in the case, convicted the appellant and
consequently sentenced as stated above.
8. Heard. Learned counsel for the appellant would submit
that, there was no evidence to indicate the appellant and the
deceased to have been seen together at the relevant time. The
appellant's father was residing in the neighborhood. The father was
not keeping well for 4 - 5 days. Close relations had already arrived
at the house of the father. The appellant was present at the house
of his father to attend to his ailing father. The police officer who
made the station diary entry did not identify the appellant as the one
who came to the Police Station and reported the matter. According
to the learned counsel, what had prevented the Police Station
Officer from recording the F.I.R. on the statement made by the
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appellant himself. Our attention was also drawn to inquest
panchanama, the post mortem report and the C.A. report to indicate
that there was blood in the nails of the deceased. Semen was
noticed at her private part. On the other hand, the medical
examination report of the appellant indicates him to have not
suffered any injury on his person. Learned counsel meant to say
that the deceased appeared to have put up resistance while being
strangled or subjected to sexual intercourse. Someone else might
have committed the said offence. The injury No.3 was possible to
have been caused by sexual asphyxia.
9. According to the learned counsel, the evidence of the
son of the appellant would indicate that the appellant was a best
father. The appellant's sister and her husband were examined as
defence witnesses to suggest the appellant had made telephone
calls to them informing his father to have passed away. They came
to the village in response to the appellant's phone call. Our
attention has also been drawn to the evidence of the appellant's
sister Sarlabai (D.W.2) to suggest that the appellant was there all
along at the house of his father. The learned counsel then
questioned how the appellant came to be arrested so late i.e. by
3/10/2018 by 00:53 Hrs. when the appellant allegedly went to the
Police Station and reported to have killed his wife. The scene of
offence panchanama was also adverted to. Relying on the same, it
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was submitted that, it contained minute details of all the articles
seen in the room. That time only the police officer could have
seized the scarf allegedly used for strangling the deceased. The
learned counsel meant to say that, the disclosure statement made
by the appellant, pursuant to which the scarf came to be seized,
was fabricated evidence. The learned counsel would submit that,
the prosecution evidence fell short to bring home the charge
beyond reasonable doubt. According to him, the burden of proof
never shifts on the accused. He relied on the host of following
authorities:-
1) P. Mani Vs. State of T.N. AIR 2006 SC 1319
2) Syed Aslam Syed Abdul Vs. State of Maharashtra
2008 BCI 68
3) Dhanpal Vs. State by Public prosecutor, Madras
2009 AIR SCW 5973
4) Arjun s/o Babarao Parche & Ors. Vs. State of Maharashtra
2012 ALL MR (Cri) 2932
5) Sou. Ranjana Vs. State of Maharashtra
2018(3) ABR (CRI) 487
6) Nazir Pathyekhanvar Vs. State of Goa
2019(3) ABR (CRI) 525
7) Shailendra Rajdev Pasvan Vs. State of Gujarat etc.
AIR 2020 SC 180
8) Shivaji Chintappa Patil Vs. State of Maharashtra
2021 ALL MR (Cri) 1569 (SC)
10. The learned A.P.P. would, on the other hand, submit
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that, the death occurred within the fourwalls of the matrimonial
home of the deceased. Except the appellant and the deceased, no
one was residing with them. The appellant approached the Police
Station and gave the information of the incident of having killed his
wife. The Police Station Officer verified the same through Police
Patil of the village. Although the information given by the appellant
to the Police Station Officer would be inadmissible being confession
to police, the same would very much be relevant as a discovery of
fact pursuant to the information given by him. The learned A.P.P.
took us through the evidence to submit that, even the children of
the appellant speak against him. According to her, there is
voluminous evidence to suggest the appellant was harassing and
ill-treating the deceased. It was the appellant and none else has
been involved in the crime in question. According to her, the Trial
Court has rightly convicted the appellant. No interference with the
impugned judgment and order is, therefore, warranted. She
ultimately urged for dismissal of the appeal.
11. Considered the submissions advanced. Perused the
evidence on record. Let us refer thereto and appreciate the same.
Admittedly, the appellant married Anusaya (deceased)
way back in 1999. The couple was blessed with two children-
Shivam (P.W.7) and Sukanya (P.W.10). Sukanya married a year
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before the offence in question. Son Shivam passed H.S.C.
examination and took admission for B.C.A. at Aurangabad. The
appellant was said to have been serving with Water Supply
Department at M.I.D.C., Bhigwan. The appellant allegedly ill-
treated Anusaya (deceased) on account of her refusal to give 2
acres of land to his sister towards expenditure that would have
been borne by her for education of Shivam. Close reading of the
evidence on record indicates that the financial condition of the
appellant was good. It was the appellant who incurred expenditure
of marriage of his daughter. He also spent for education of his son
Shivam. Except a faint evidence that the appellant would ill-treat
his wife so as to coerce her to fetch money from her brother, there
is nothing to invoke the offence under Section 498-A of the Indian
Penal Code. The Trial Court, based on such evidence, ought not to
have convicted the appellant for the said offence.
12. The question is, whether the deceased met with
homicidal death. Other question is whether the appellant is author
thereof. Post mortem report (Exh.44) indicates the deceased died
due to sudden cardio respiratory arrest due to asphyxia due to
throttling. P.W.3 Dr. Sunanda conducted post mortem examination.
She noticed following injuries on the neck of the deceased :-
1) The bruise on neck, oval, approximately 1 x 1 cm. impression
on right side of neck under lower jaw over thyroid cartilage
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laterally.
2) The 2 - 3 bruise marks approximately 1 x 1.5 cm. on left side
of neck obliquely downwards and outwards.
3) Faint ligature mark seen below thyroid cartilage
approximately 4 cm. long and ½ broad.
4) 2 - 3 abrasion marks 0.5 x 0.5 cm. on neck bilaterally.
13. The appellant did not dispute his wife to have met with
homicidal death. Inquest panchanama (Exh.46) reinforces
existence of injuries on the neck of the deceased.
14. Admittedly, the appellant and the deceased were the
only persons residing together. Although the deceased was staying
with her son Shivam at Aurangabad for his education purpose, she
had come to the house of the appellant a fortnight before she met
with homicidal death.
15. In case of Trimukh Maroti Kirkan Vs. State of
Maharashtra [ (2006) 10 SCC 681, it has been observed that :-
"21. In a case based on circumstantial evidence
where no eyewitness account is available, there is
another principle of law which must be kept in
mind. The principle is that when an incriminating
circumstance is put to the accused and the said
accused either offers no explanation or offers an
explanation which is found to be untrue, then the
same becomes an additional link in the chain of
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circumstances to make it complete. This view has
been taken in a catena of decisions of this Court
[See State ofT.N. V. Rajendran (1999) 8 SCC 679,
(SCC para 6) . . . . . .
22. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence to show
that shortly before the commission of crime they
were seen together or the offence takes place in
the dwelling home where the husband also
normally resided, it has been consistently held
that if the accused does not offer any explanation
how the wife received injuries or offers an
explanation which is found to be false, it is a
strong circumstance which indicates that he is
responsible for commission of the crime. . . . . . ."
16. Needless to mention, each case has to be decided on
its peculiar facts and circumstances. We have perused the
authorities relied on by the learned counsel for the appellant. The
judgment in case of Dhanpal (supra) indicates the trial Court had
acquitted the appellant Dhanpal. The High Court reversed the
finding of conviction with its own reasons. While the facts in the
case of P. Mani (supra) indicate that the deceased therein had
bolted the door from inside after she made her children go out of
the room. It was not the case that the husband and wife were seen
together inside the room.
While the facts in case of Syed Aslam Syed Abdul
(supra) would indicate that the appellant therein would run a pan
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shop. The incident took place by 3.00 - 3.30 p.m., the time by
which he happened to be at his pan stall. There is no evidence that
they were seen together before the incident in question therein took
place.
17. We have to decide the present appeal on the basis of
the evidence adduced before the Trial Court. Most of the witnesses
including the children of the appellant testified that he was addicted
to alcohol. For one or the other reason, he would harass and ill-
treat Anusaya (deceased), his wife. To the last question put to him,
in his examination under Section 313 of the Cr.P.C., he stated :-
"ममझयम व ममझयम पतननशन भमभडण हहत नवहतत . मन २०
वरमरपमससन सभसमर करत हहतह. मन घटनतचयम वतळन
आजमरन असलयमनत ममतमकडत हहतह."
18. It is true that, on the night on which the appellant's wife
met with homicidal death, his father passed away due to old age
and somewhat prolonged illness. Admittedly, the appellant's father
would reside separately, some distance away from the appellant's
house. There is also evidence to indicate that the appellant has
siblings (brothers and sisters). They had come to the house of his
father since the father was not keeping well. It is the defence of the
appellant that he was at the house of his father to attend to him. He
examined his sister Sarlabai (D.W.2) and her husband Basantsing
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(D.W.1) in that regard. Both these witnesses testified that it was the
appellant who had informed them of his father to have passed away
and they therefore came down to the village. Evidence of P.W.1
Mohansing is also relied on in that regard. This witness did not
stand by the prosecution. Meaning thereby, the prosecution would
not propose to rely on his evidence. What this witness has testified
is that the children of the deceased father of the appellant were at
his (father's) residence. The admission is as vague as it could be.
Since the appellant had other siblings, it was not specifically put to
this witness that the appellant too was present at the house of his
father.
19. On the contrary, we have evidence of P.W.13
Prabhakar, Assistant Police Inspector with Omerga Police Station.
His evidence indicates that he was on duty as Police Station Officer
on the intervening night of 1st and 2nd October 2018. A person by
name Mohansing Gaherwar came to the Police Station at 4.45 a.m.
The said person told him (P.W.13) to have killed his wife by
compression of neck. P.W.13 Prabhakar found him under influence
of liquor and even mentally disturbed. True, self incriminating
matter stated by him to the Police Station Officer would be
inadmissible in evidence, being confession to police. The evidence
of P.W.13 Prabhakar further indicates that, with a view to verify
what was told to him by that person, he contacted the Village Police
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Patil Maruti (P.W.8). His evidence would further indicate that, P.W.8
Maruti, in turn, went to the house of that person and reported him
back to have seen the wife of the appellant dead. He (P.W.13
Prabhakar) threreupon made a station diary entry No.275/2018 to
that effect. Same finds place at Exh.103. It reads thus :
"तयमलम थमभबवसन घततलत हहतत. सटतशन डमयरनलम ननद
क. २७५/२०१८ हन घततलन."
20. While the station diary entry was admitted in evidence,
no objection to its admissibility was ever raised. It is made clear
that, we are not proposing to read the statement which was in the
nature of confession made by the appellant to the police.
21. P.W.8 Maruti was admittedly a Police Patil of the
village. It is in his evidence that, in the early morning of 2/10/2018,
he received a phone call of Police Station Officer. He was asked to
verify whether wife of person by name Mohansing (appellant) was
died at her residence. It is further in his evidence that he therefore,
went to the house of the appellant. The entrance door was simply
closed (not bolted) either from inside or outside). One Ranveersing
and his cousin Sonu were in his company. He entered the house of
the appellant to find the appellant's wife was lying on a bed. He
found her to have passed away. He accordingly reported back to
the Police Station Officer. His evidence further indicates that he
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remained in the house of the appellant until the police arrived and
scene of offence panchanama was drawn.
22. Although P.W.8 Maruti, in his cross-examination,
admitted that on the said night the father of the appellant had
passed away and his children and other relations had gathered
there, he was not specific to state that appellant was one of them to
be present there i.e. of father's house.
23. True, P.W.13 Prabhakar did not identify the appellant
before the Court as one who had come to the police station and
reported the matter. Close reading of evidence of P.W.13
Prabhakar would indicate that, when his evidence was recorded,
the appellant was not produced from jail. P.W.13 Prabhakar was
categorical to state that he would identify the person who had come
to the police station and reported the matter.
24. It is true that, the appellant was arrested on 3/10/2018
by 00:53 Hrs. The conduct of the appellant, however, is
inconsistent with his innocence. When his wife met with homicidal
death in his house, his absence in the house while the scene of
offence panchanama was drawn speaks in volumes. The station
diary entry indicates the appellant to have been detained at the
police station. It is not known as to why the investigating officer
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arrested the appellant so late. The fact remains that a person by
name Mohansing (appellant) went to the police station and reported
the matter. The Village Police Patil immediately rushed to the
appellant's residence to find his wife to have met with homicidal
death. This fact would be relevant under Section 27 of the
Evidence Act. Some lapse on the part of the investigating officer
not going to the root of the matter is of little consequence. The
dead body of the wife of the appellant was even rushed to the
hospital only on arrival of the appellant's brother-in-law Mohansing
(P.W.1), real brother of the deceased. It is P.W.1 Mohansing who
lodged the F.I.R. This is the reason why the appellant came to be
arrested post registration of the crime. True, the Police Station
Officer could have recorded an F.I.R. on the basis of the statement
given by the appellant in the early morning. There is further
evidence to indicate that after post mortem, the dead body was
given to the brother of the deceased. Her funeral took place in the
village of her parents. The appellant did not offer any explanation
as to why he, being husband of the deceased, did not claim body
and perform final rites.
25. Our attention was also drawn to the C.A. report (Exh.7)
to indicate that, in the nail clippings of the deceased, some blood
was noticed while the medical examination report of the appellant
indicates him to have not suffered any external injury. Learned
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counsel for the appellant wanted to suggest that, while the
deceased was being throttled/ strangled, she appears to have put
up her resistance and since the culprit was not the appellant, he did
not receive nail scratch occurred as a result of the resistance put up
by the deceased. Our attention was also drawn to injury No.3,
which was said to have probably caused on account of sexual
asphyxia. Discharged semen was detected at the private part of
the deceased. The appellant meant to say that someone else
might have committed sex and then killed the deceased. We are
not ready to buy the submissions made by learned counsel for the
appellant.
26. It is reiterated that, there is voluminous evidence to
indicate the appellant was addicted to alcohol. He was residing
along with his wife (deceased). No one else was residing along
with them. His father was residing separately. Although his father
died the same night, there is nothing to indicate that he was
attending to his father. He did not offer any explanation as to why
his response was luke warm while his wife met with homicidal death
at his own residence. We have every reason to rely on the
evidence of P.W.13 Prabhakar, the Police Station Officer to infer
that it was the appellant and none else who had been to the Police
Station and reported the matter. The Police Station Officer got it
verified from the Police Patil Marti (P.W.8). The appellant was
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detained at the Police Station itself. His response to the last
question put to him in his examination under Section 313 of the
Cr.P.C. goes a long way to infer that at the material time he was in
the company of the deceased. He did not offer any explanation as
to how his wife met with homicidal death. In our view, the evidence
on record undoubtedly lead us to infer that it was the appellant and
none else who has committed the murder of his wife. The Trial
Court rightly convicted the appellant for the offence of murder.
However, for the reasons given hereinabove, we are not in
agreement with the Trial Court's finding, convicting the appellant for
the offence punishable under Section 498-A of the Indian Penal
Code.
27. For the reasons given hereinabove, the appeal partly
succeeds. Hence the order :-
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) The order of conviction and sentence dated 6/8/2022, passed
by learned Additional Sessions Judge, Omerga in Sessions
Case No.1/2019, convicting the appellant for the offence
punishable under Section 302 of the Indian Penal Code and
consequential sentence of imprisonment and fine with default
stipulation is maintained.
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(iii) Conviction of the appellant, for the offence punishable under
Section 498(A) of the Indian Penal Code and the
consequential sentence is, however, set aside. The appellant
is acquitted of the offence punishable under Section 498(A) of
the Indian Penal Code. Fine amount on that count, if paid, be
refunded to the appellant.
(iv) The Criminal Appeal stands disposed of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
