Bombay High Court
Murlidhar S/O. Sabaji Bachkar And Anr vs The State Of Maharashtra on 15 October, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:25593
Cri.Appeal No.183/2020
with 186/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.183 OF 2020
Kishor s/o Murlidhar Bachkar,
Age 23 years, Occu. Agri.,
R/o Watapur, Tq. Newasa,
Dist. Ahmednagar. ... APPELLANT
VERSUS
The State of Maharashtra
Through In-charge Police station Officer,
Sonai Police Station, Tq. Newasa,
Dist. Ahmednagar
(Copy for respondent to be served
on Public Prosecutor, High Court,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. S.V. Kurundkar, Advocate with
Mr. R.N. Chavan, Advocate for appellant
Mrs. Uma S. Bhosle, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.186 OF 2020
1) Murlidhar s/o Sabaji Bachkar,
Age 62 years, Occu. Agri.,
R/o Watapur, Tq. Newasa,
Dist. Ahmednagar.
2) Tanhabai w/o Murlidhar Bachkar,
Age 57 years, Occu. Agri.
R/o Watapur, Tq. Newasa,
Dist. Ahmednagar. ... APPELLANTS
VERSUS
The State of Maharashtra
Through In-charge Police station Officer,
Sonai Police Station, Tq. Newasa,
Cri.Appeal No.183/2020
with 186/2020
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Dist. Ahmednagar
(Copy for respondent to be served
on Public Prosecutor, High Court,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. S.V. Kurundkar, Advocate with
Mr. R.N. Chavan, Advocate for appellant
Mrs. Uma S. Bhosle, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 30th September, 2024.
Date of pronouncing judgment : 15th October, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
The challenge in both these appeals is to a
judgment and order of conviction and consequential sentence
passed by the Court of Additional Sessions Judge, Newasa,
District Ahmednagar on 13/2/2020 in Session Case
No.14/2018. Vide impugned order, the appellant Kishor in
Criminal Appeal No.183/2020 and the appellants Murlidhar and
Tanhabai in Criminal Appeal No.186/2020 have been convicted
for the offence punishable under Section 498-A read with
Section 34 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for two years and to pay fine of
Rs.5000/-, in default to suffer S.I. for three months.
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The appellant Kishor has also been convicted for
the offence punishable under Section 302 of the Indian Penal
Code and sentenced to undergo imprisonment for life and to
pay fine of Rs.10,000/-, in default to suffer S.I. for 6 months.
Both the sentences against the appellant Kishor have been
directed to run concurrently.
The appellants have been acquitted of the offences
punishable under Sections 3 and 4 of the Dowry Prohibition
Act, 1961 and Sections 323, 504, 506, 340-B, 201 r/w 34 of
the Indian Penal Code.
2. Facts giving rise to the present appeals are as
follows :-
Jayshree (deceased) was daughter of P.W.2
Dadabhau. She married appellant Kishor about one and half
year before the incident dated 26/8/2017. Jayshree was not
treated well at her matrimonial home. All the appellants and
one of their relatives (original accused No.4 - since acquitted)
would harass and ill-treat her so as to coerce her to meet
unlawful demand of money for purchase of motorbike and/or
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payment of the loan raised for the purchase of the said
motorbike.
3. It is also his case that, by 1.30 a,.m. on 26/8/2017,
he received a phone call of the father-in-law of Jayshree,
informing that she was not making movements. He along with
his relations, therefore, rushed to the Government Hospital.
Having seen her, he found blouse on her person and full
undergarment (Parkar) were torn. Her body had turned black.
Her neck was swollen. She was unable to speak. She was,
therefore, rushed to the Civil Hospital at Ahmednagar. She
was even taken to the hospital at Loni. The Medical Officer
there told she died of throttling. After the last rites were
performed on her body at Watapur, P.W.2 Dadabhau lodged
the F.I.R. (Exh.30) with Sonai Police Station.
4. Based on the F.I.R., a crime vide C.R. No.116/2017
was registered for offence punishable under Section 304(B),
498(A), 323, 504, 506 r/w 34 of the Indian Penal Code. Later
on Section 302 of the Indian Penal Code was invoked. The
crime was investigated. Appellants were arrested. Statements
of persons acquainted with the facts and circumstances of the
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case were recorded. Crime scene panchanama was drawn.
Inquest and autopsy were conducted. On completion of the
investigation, a charge sheet was filed.
5. The Trial Court framed the Charge (Exh.16) against
the appellants and one Bhanudas Bachkar (since acquitted) for
various offences. The appellants pleaded not guilty. Their
defence before the Trial Court was that the deceased was not
keeping well. She was unable to conceive. She might have
met with natural death.
6. To bring home the charge, the prosecution
examined 11 witnesses and adduced in evidence certain
documents. On appreciation of the evidence in the case, the
Trial Court convicted the appellants and sentenced them as
stated above.
7. Heard. Learned Advocate for the appellants would
submit that, it was an arranged marriage. Financial status of
the father of deceased Jayshree was not sound. The
appellants owned agricultural field and were financially better
than the informant - P.W.2 Dadabhau. He took us through the
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admissions given by P.W.2 Dadabhau to indicate that it was he
who used to borrow money from appellant Kishor on
occasions. He then took us through the evidence of P.W.7
Sanjay to indicate that the appellant Kishor had bought a
motorbike with the financial assistance of a Society. P.W.7
Sanjay stated that appellant Kishor had paid Rs.16,000/- as
down payment and was regular in payment of Equal Monthly
Installments (E.M.Is.) of Rs.2444/-. He then adverted our
attention to the admission of P.W.2 Dadabhau that his
companion narrated the contents of the F.I.R. and he simply
signed below the same. According to the learned Advocate, as
such, there was no case for conviction of the appellants for the
offences punishable under Section 498-A of the Indian Penal
Code.
8. So far as regards conviction for the offence
punishable under Section 302 of the Indian Penal Code is
concerned, he would submit that, the appellant Kishor, having
seen his wife not making movements, rushed her to the
hospital with the assistance of neighbours. He then adverted
our attention to the evidence of P.W.5 Dr. Shilpa to submit that,
both of them had been to P.W.5 Dr. Shilpa to get examined
themselves for gyneacological problem and conception as
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well. Learned Advocate meant to say that the appellants were
taking all the care of the deceased Jayshree. It was also
brought on record that the appellants Murlidhar and Tanhabai
were residing in adjoining, but different room. Learned
Advocate, in the alternative, would submit that, it would at the
most be an offence punishable under Section 304 Part II of the
Indian Penal Code. The appellant has put on record this side
of the story in writing while he was examined under Section
313 of the Criminal Procedure Code. He wanted to have
coitus with his wife. She refused. She even abused him that,
"He was not a man". The wife Jayshree became aggressive.
She assaulted him and even caught hold of his neck. With a
view to save himself, he too caught hold of her neck. Her neck
got pressed. She might have died thereby. The appellant did
not have any intention to kill he. He immediately rushed her to
the hospital with the assistance of the neighbour P.W.6
Govardhan. Learned Advocate ultimately urged for converting
the appellant's conviction from the offence punishable under
Section 302 to Section 304 of the Indian Penal Code.
9. The learned A.P.P. would, on the other hand,
submit that, the offence took place within the fourwalls of the
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matrimonial home of deceased Jayshree. In the
circumstances, there could be no eye witnesses to the
incident. In view of Section 106 of the Evidence Act, it is for
the appellant Kishor to explain the circumstances in which
Jayshree died. She adverted our attention to the post mortem
report to indicate that Jsyshree died of throttling. The
appellant could have prevented aggression of deceased, if
any, by other means. Killing his wife by throttling goes a long
way to indicate his intention was to kill his wife. She took us
through the entire evidence on record to ultimately urge for
dismissal of the appeals.
10. Considered the submissions advanced. Perused
the evidence on record. Also perused the judgment impugned
herein. Let us appreciate the evidence on record.
Offence under Section 498-A of the Indian Penal Code -
11. Jayshree was a daughter of P.W.2 Dadabhau.
She had married appellant Kishor about one and a half year
before she breathed her last on 26/8/2017. P.W.2 Dadabhau
testified that, he incurred the marriage expenses and paid the
appellants dowry. According to him, the appellants would not
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allow Jayshree to talk with him on cell phone. They had
removed the Sim Card from her cell phone. Whenever she
used to meet him, she would relate her woes. She had related
him of being ill-treated to fetch money from him for purchase of
motorbike, and/or repayment of the loan raised for purchase of
the same. He had, therefore, reasoned with the appellants.
12. Aforesaid is the evidence in respect of the offence
punishable under Section 498-A of the Indian Penal Code. For
better appreciation, Section 498-A is reproduced below :-
"498-A) Husband or relative of husband of a woman
subjecting her to cruelty :- Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation:- For the purpose of this section,
"cruelty" means -
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand
for any property or valuable security or is on
account of failure by her or any person related to her
to meet such demand."
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13. In his cross-examination, P.W.2 Dadabhau
admitted that, one Dhaygude had accompanied him to the
Police Station. It was Dhaygude who related everything to the
police. It was reduced into writing. He simply put his signature
below the said writing. The same indicates that the contents of
the F.I.R. were not narrated by P.W.2 Dadabhau. So far as
regards alleged ill-treatment of Jayshree in connection with the
unlawful demand for purchase of motorbike is concerned,
P.W.2 Dadabhau has given a vital admission to the effect that
whenever he used to be in financial need, he would borrow
money from appellant Kishor. His own financial condition was
poor. The appellant owned agricultural field.
14. Then we have evidence of P.W.7 Sanjay. He was
serving with the Samarth Auto, Sonai. It is in his evidence that,
appellant Kishor had purchased a motorbike on EMIs of
Rs.2444/-. He was regularly making payment thereof when
down-payment of Rs.16,000/- was made by him in one go.
15. P.W.5 Dr. Shilpa testified that, Kishor and Jayshree
had been to her to get examined themselves as Jayshree did
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not conceive. Dr. Shilpa was a Gynaecologist. The same
indicates that, the appellant Kishor was taking care of his wife.
15. The aforesaid evidence goes a long way to infer
that the offence punishable under Section 498-A of the Indian
Penal Code could not be brought home. The Trial Court ought
not to have convicted the appellants for the said offence. The
appellants, therefore, deserve to be acquitted thereof.
Section 302 IPC - Murder :
17. P.W.3 Dr. Mohan Pawar was the Medical Officer,
Rural Medical College, Loni. He conducted autopsy on the
mortal remains of Jayshree. He noticed following injuries on
the person of Jayshree :
(1) Crescent shaped scratch abrasion present over neck,
anterior aspect, 6.9 cms. below the mid of chin and 7.1
cm, above the suprasternal notch, 1.4 cm. in length.
Surrounding area over the neck contused over an area
of 5.0 x 0.9 cms, more on right side. On cut section
bright red coloured ecchymoses seen underneath tissue
and neck muscle.
On internal examination, bright red coloured
ecchymoses seen over supra-glottis region on both
sides.
(2) Scratch abrasion present over right shoulder, 0.8 cms. in
length, present 3.4 cm. above lateral end of right clavicle
and 4.5 cms. medial to shoulder tip, reddish in colour.
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(3) Scratch abrasion present over right lower chest, 0.7
cms. in length, present 10.9 cms. below the right nipple
and 6 cms. right to midline, reddish in colour.
In his opinion, Jayshree died due to asphyxia due
to throttling. The post mortem report finds place at Exh.43.
In his cross-examination, P.W.3 admitted to have
not given the exact time of death. He further testified that no
samples of nails were collected in order to examine whether
any material was there in the nails of the deceased. He
admitted that in case of abrasion to any other person by
deceased, the tissues are expected to be there in the nails.
He went on to admit that the nails were to be sent for chemical
examination to ascertain the person who committed throttling.
According to him, there were 5 types of asphyxia, one of which
was violent sexual asphyxia. The same can be accidental.
According to him, the same was irrelevant in the present case.
18. P.W.3 Dr. Mohan being an independent witness,
had no reason to be in favour of either prosecution or the
appellants. His evidence undoubtedly indicates Jayshree died
of throttling.
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19. P.W.4 Dr. Kishor was a Medical Officer working at
Newasa. It is in his evidence that, by 5.00 a.m. on 26/8/2017,
Jayshree was brought to the hospital by her husband and
relations. She was brought dead. He, therefore, directed her
to refer to Civil Hospital, Ahmednagar. He gave information to
Newasa Police Station.
20. It is further in his evidence that, on the same day
he had examined appellant Kishor by 4.30 p.m. and found
following injuries on his person :
(1) Scratch mark on right side of the neck around 3 cm.
above mid-line of the clavicle bone. It was 0.2 x 0.1 cm. Age
of injury was around 48 hours. It was simple injury and
probably caused by nails.
(2) Scratch mark over right side of chest on mid-auxiliary line
around 6-7 rib area. Size 0.3 x 0.2 cm. Age of injury was
around 48 hours. It was simple injury. Probably caused by
nails.
He issued injury certificate (Exh.45).
21. P.W.10 Rajkumar is a witness to inquest
panchanama (Exh.64). While P.W.1 Maroti Sadavarte is a
witness to the crime scene panchanama (Exh.31). The crime
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scene is one of the rooms of the house of the appellants.
Broken bangle pieces were seized from the bed in the room.
22. P.W.6 Govardhan was neighbour of the appellants.
It is in his evidence that, by little past 1.30 midnight, he
received a phone call of appellant Kishor, informing that his
wife Jayshree was not keeping well. He, therefore, rushed to
his residence. Kishor and his parents (appellants) and his
grandmother were also there. He thought Jayshree to have
suffered heart attack. He did some pumping, but in vain. He,
therefore, brought a bullock cart of tyre-wheels. It was toed to
tractor and Jayshree was brought to the hospital therein.
23. In the cross-examination, this witness testified that,
appellant Kishor was residing away from his parents.
24. P.W.1 Maroti was a witness to various
panchanamas. First of such panchanama is Exh.28. It relates
to seizure of clothes of the deceased. Then is the
panchanama (Exh.28) relating to seizure of clothes of the
appellant at the time of his arrest. This witness in his
examination-in-chief itself testified that there were abrasions
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on the person of appellant Kishor. There were some injuries
as well on his neck and ribs. The arrest panchanama of
appellant Kishor is at Exh.30. The crime scene panchanama
drawn in his presence finds place at Exh.31.
25. P.W.9 Maruti Pawar was driver of the Police
vehicle. P.W.10 Rajkumar, Police Officer conducted the
inquest while P.W.11 Abdul Kalim was Assistant Sub-Inspector
of Police, who did the investigation of the crime. The
investigating officer P.W.11 Abdul Kalim admitted that there
were injuries on the person of appellant Kishor. He realised
that, a scuffle took place between appellant Kishor and his wife
and both of them pressed neck of each other. According to
him, he initially did not invoke Section 302 of the Indian Penal
Code. He, however, denied that the incident took place at the
spur of moment.
26. The arrest panchanama of appellant Kishor
(Exh.30) indicates that there were injuries on his neck, chest
and ribs. At the time of arrest itself, he informed the police
officer that he suffered those injuries in a quarrel with his wife
(deceased Jayshree). The injuries were caused by her (This is
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admissible in his favour). In his examination under Section
313 of the Cr.P.C., he placed on record his say, wherein he
stated that, on the fateful night, he asked his wife for sexual
favour. She refused. She abused him (that he was not a
man). He got annoyed thereby. He attempted to have sex
with her against her wish. She, therefore, caught hold of his
neck with a tight grip. She was physically well built than him.
He, therefore, made attempts to get rescued from her clutches.
He started feeling that his breath was going low. His neck
came into her hand and got pressed. He made desperate
attempts to get rescued from her clutches. In the process, her
neck got pressed. She fell unconscious. He, therefore, called
his neighbour and rushed his wife to Rural Hospital at Newasa.
27. The appreciation of the evidence indicates that, the
incident took place in a room wherein the appellant Kishor and
his wife were the only persons. A quarrel ensued between the
two. The deceased Jayshree caused injuries on the person of
the appellant. Dr.Kishorkumar (P.W.4) who examined him
issued certificate in that regard (Exh.45). His arrest
panchanama also indicates that there were injuries on his neck
and ribs. From day one of his arrest, it was a case of the
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appellant that it was his wife who quarreled with him and
caused him injuries. He placed on record his say in response
to his examination under Section 313 of the Cr.P.C. The same
has been referred to hereinabove. The investigating officer too
testified that the incident occurred out of a quarrel between the
two i.e. appellant and his wife.
28. In view of the aforesaid evidence, the case would
fall under Exception 4 of Section 300 of the Indian Penal Code.
Although learned Advocate for the appellants relied on the
judgment of the Apex Court in case of Anbazhagan Vs. State
Represented by the Inspector of Police (2023 SCC OnLine
SC 857), the facts thereof were altogether different. Here the
appellant killed his wife by throttling. He could have used other
means to control her. Killing a wife with throttling indicates his
intention was to kill her. The same, however, occurred without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the appellant having taken undue
advantage or acted in a cruel or unusual manner. In view of the
same, the Trial Court ought not to have convicted the appellant
for the offence of murder. Interference with the impugned
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order of conviction and consequential sentence is, therefore,
warranted.
29. In the result, both the appeals stand disposed of in
terms of the following order :
ORDER
(i) The Criminal Appeals are partly allowed.
(ii) Conviction of the appellant Kishor s/o Murlidhar Bachkar
in Criminal Appeal No.183/2020 and the appellants Murlidhar
s/o Sabaji Bachkar and Tanhabai w/o Murlidhar Bachkar in
Criminal Appeal No.186/2020 and consequential sentence
recorded by learned Additional Sessions Judge, Newasa,
District Ahmednagar on 13/2/2020 in Session Case
No.14/2018 for the offence punishable under Section 498-A of
the Indian Penal Code is hereby set aside. All the appellants
are acquitted thereof. Fine amount, if paid on that count, be
refunded to them. Bail bonds of appellants Murlidhar and
Tanhabai in Criminal Appeal No.186/2020 are cancelled.
(iii) Conviction of the appellant Kishor s/o Murlidhar
Bachkarin Criminal Appeal No.183/2020 for the offence
punishable under Section 302 of the Indian Penal Code is
hereby set aside. The appellant is acquitted thereof. Instead,
the appellant Kishor s/o Murlidhar Bachkar is convicted for the
offence punishable under Section 304 Part I of the Indian
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Penal Code and sentenced to suffer rigorous imprisonment for
eight years and to pay fine of Rs.3000/- (Rupees three
thousand), in default to suffer R.I. for two months.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
