Bombay High Court
Vikas Baban Paygude And Anr vs The State Of Maharashtra on 23 October, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:42902-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 417 OF 2019
1. Vikas Baban Paygude
Age - 32 Years, Occu -
Business,
2. Baban Balwant Paygude
Age - 58 Years, Occu - Petitioners
Agriculurist,
R/o- Mahalunge, Tal - Khed,
Dist - Pune
At present Yerwada Central
Prison, Pune
Versus
Respondent
The State of Maharashtra
...
Mr. Umesh H. Pawar a/w Mr. Sagar R. Sonawane, for the
Appellant.
Mr. J. P. Yagnik, APP, for the Respondent - State.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON: 20th AUGUST, 2024
PRONOUNCED ON: 23rd OCTOBER, 2024
Judgment : (Per Manjusha Deshpande, J.):-
1. The Appellant has been convicted for the offences
punishable under Section 302 alongwith Section 498-A of the
Indian Penal Code. He has been sentenced to suffer rigorous
imprisonment for life and pay fne of Rs.5,000/- and in default
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suffer simple imprisonment for fve months for offence under
Section 302 of the IPC and suffer rigorous imprisonment for
two years with a fne of Rs.3,000/- and in default, simple
imprisonment for three months for offence under Section 498-
A of the IPC respectively.
2. The Appellant herein was charged for offence punishable
under Sections 302, 304-B, 498-A r/w Section 34 of the IPC
alongwith the four other accused. After the conclusion of trial,
Accused No.1 i.e. the present Appellant alongwith Accused
Nos.2 and 3 have been convicted for the abovementioned
offences, while the rest of the accused have been acquitted of
the charges. Since Accused Nos.2 and 3 have expired, the
challenge in the present Appeal is limited to the extent of
Accused No. 1 i.e. the present Appellant.
3. The prosecution story is that, the deceased Sheetal
Paygude was sister of informant PW 1 Ganesh Ghanavat. She
was married with Accused No. 1 Vikas Paygude on 09.05.2011.
Initially she was treated well by the accused persons, however
in the meanwhile, brother-in-law of Sheetal had expired. Due
to untimely death of her brother-in-law, she was held
responsible for his death and she was accused of being a bad
omen for the family. Due to such instances, the accused started
beating and abusing her. There was also demand of gold
necklace and cash from her parents. Though the condition of
parent of Sheetal was fnancially weak, however they
managed to give Rs.50,000/- to Sheetal. Sheetal has also given
birth to a son.
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According to PW 1 informant Ganesh Ghanavat, Sheetal
used to inform him about the ill-treatment meted to her by the
accused persons in her calls which she made to him. The
maternal uncle of Accused No. 1 Jangal Valake had mediated
and convinced PW 1, that Sheetal will not suffer further
harassment at her matrimonial house. In spite of weak
fnancial condition, PW 1 had given Rs. 50,000/- twice to
Sheetal, after the demand was made by her-in-laws, for
business of Vikas, who was running a business of Vadapav.
4. There was an engagement ceremony of daughter of
maternal uncle of Sheetal, who had sent invitation to the
relatives on telephone. One such invitation was also given to
Sheetal and her in-laws. On receiving such invitation on
telephone, the in-laws and other family member of accused felt
insulted and started severely ill-treating her by not providing
food to her; she also was asked to leave the house. This
information was given by Sheetal to PW 1 by making him a call
on 12.04.2015 at about 07:00 to 07:30 p.m.. Therefore, the
parents of Sheetal called maternal uncle of Accused No.1
Jangal Valake, on the very night and told him about the
harassment caused to Sheetal. Jangal Valake assured them
that, he will go to Sheetal's house and see as to what can be
done. However, on very night i.e. on 13.04.2015 at about
02:00 a.m. a call was received from phone of Accused No. 1
that, Sheetal had hanged herself and they should come
immediately at Mahalunge. When they reached, they found
that Sheetal had already expired, therefore PW 1 Ganesh
Ghanawat went to police station for lodging FIR. Since police
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were not ready to register the FIR, he approached offce of the
Superintendent of Police and gave an application. It is only
thereafter FIR was registered against the accused persons.
5. On the basis of FIR, Crime No.191 of 2015, was
registered. Investigation was handed over to PW 6 Maruti
Bhivsen Khedkar, who conducted the investigation and fled
charge-sheet. Charges were framed, vide Exhibit 38 and the
accused denied all the charges levelled against them. For
proving the charges against the accused persons the
prosecution has examined six witness. After recording of
evidence and hearing the respective parties, the Additional
Sessions Judge, Khed- Rajgurunagar, Dist- Pune has vide
judgment dated 20.02.2019 convicted Accused Nos. 1 to 3 for
offence punishable under Section 302 alongwith Section 498-A
of the IPC.
The Appellant has fled the present Appeal under Section
374(2) of the Code of Criminal Procedure challenging the
Judgment and Order of conviction. It is submitted by the
learned counsel for the Appellant that, the prosecution has
failed to bring on record the suffcient evidence to prove that,
the accused persons were present in the house at the relevant
time of death of Sheetal. There is no evidence on record to
show that the accused was last seen together with deceased
Sheetal at relevant time in their room. The chain of
circumstantial evidence is not complete, therefore the
Appellant is entitled to be acquitted. Mere suspicion cannot be
a substitute for proof, which would lead to the conclusion that,
the accused is responsible for the death of deceased.
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According to the Appellant, there is no evidence on record
proved by the prosecution for the alleged harassment and
mental cruelty treatment given to deceased Sheetal. The
panch witness of spot panchnama, Santosh Udhane is an
interested witness, therefore his testimony should not have
been relied by the Additional Sessions Judge. In fact Sheetal
had committed suicide by hanging herself, which is supported
by the testimony of Doctor as well as the postmortem report.
The Medical papers at Exhibit - 87 and 88 clearly show that,
there were marks on the neck of Sheetal, from which only
conclusion that can be drawn is that of committing suicide by
hanging.
6. The learned counsel for the Appellant has drawn our
attention to the testimony of PW 5 Dr. Uday Shivaji Pawar, who
in his cross-examination has given an admission that, no
struggle marks; signs of violence and injuries were found on
the body of Sheetal. The learned counsel has relied on the
testimony of PW 5 in order to draw support to their defence
that death of Sheetal is caused due to suicide and it is not a
murder. An objection was also raised by the learned counsel
regarding the search panchanama conducted of the house of
the accused, where the grill of the main door as well as the
latch of bedroom were required to be broken.
The learned counsel has also contended that, the fnding
of the Additional Sessions Judge holding that difference of 4
inches between the height of ground and the ceiling was not
suffcient for causing death by hanging and causing suicide in
case of the Appellant is contrary to the record. It is also
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contended that, though there is no proof about cruelty and
demand of dowry, the Additional Sessions Judge is not justifed
in convicting the accused under Section 498-A of the IPC. The
Appellant has raised above and some more grounds for
challenging the Judgment and Order of the Additional Sessions
Judge.
7. The learned APP for the State has opposed the Appeal
contending that, the prosecution has proved beyond
reasonable doubt that, Accused Nos. 1 to 3 have given ill-
treatment to deceased Sheetal and, thereafter, has committed
her murder by strangulation. The testimony of PW 5 Dr. Uday
Pawar is explicit, which points towards the guilt of the
accused. Considering that the death has occurred by hanging
at night and there was nobody else present in the house,
burden of proof is on the accused persons as per Section 106 of
the Evidence Act. The initial burden of proof has been
discharged by the prosecution, therefore as per Section 106, it
was the accused who were supposed to discharge the burden of
proof that they are not responsible for the death of the
deceased.
The testimony of PW 1 to prove cruelty, the testimony
PW 2 to prove spot panchanama and the testimony of PW 5 Dr.
Uday Pawar to prove cause of death are suffcient to prove
that, the Appellant No. 1 alongwith Accused Nos. 2 and 3 have
caused the death of sheetal and they have subjected her to
cruelty and also made her demand of money and gold
necklace, thereby committing offence under Section 498-A of
the IPC. The learned APP has therefore prayed that the
Appeal of the Appellant deserves to be dismissed.
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8. We have heard the learned counsel for the Appellant as
well the learned APP for the State, and we have also gone
through the evidence placed on record.
9. So far as the issue whether the death is homicidal or
accidental, there is no dispute about the same in view of the
testimony of PW 5 Dr. Uday Pawar, Medical Offcer, Primary
Health Centre, Khed- Rajgurunagar, Pune, who in no uncertain
terms has given an opinion in the postmortem that, probable
cause of death is "death is due to asphyxia secondary to
strangulation with throttling". From the cause of death given
by PW 5, it is evident that, since the death is on account of
strangulation. Hence, it is proved that the death is homicidal.
As regards the points framed by the Additional Sessions
Judge, whether the accused persons individually or in
furtherance of their common intention committed murder of
Sheetal; whether Sheetal was murdered in furtherance of
common intention and by subjecting her to physical and
mental cruelty on account of unlawful demand of dowry, and
she was intentionally subjected to harassment are interlinked,
therefore, the evidence in that regard will have to be
considered and decided together.
10. The evidence of PW 1 Ganesh Ghanawat, who is the
informant assumes importance, since he is the karta of the
family after death of father of deceased Sheetal. He was
looking after the affairs of the family and he was the person,
who had reached the hospital after receiving phone call about
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the death of deceased sheetal. According to the said witness,
Sheetal was his younger sister, and after her marriage on
09.05.2011, Sheetal used to call him on his cellphone and
inform him about the treatment given to her by her in-laws in
her matrimonial house.
It is categorically contended by him that, there was a
demand in May, 2012 and August, 2012 from Accused Nos. 1 to
3 of Rs.50,000/-. He has given those amounts, in spite of their
weak fnancial condition. In spite of parting with huge amounts
as per the desire of accused, the behavior of accused persons
did not improve. After one such episode of beating Sheetal,
they had been to the Chakan Police Station. After intervention
by PSI Thorat, the relatives of accused assured that Sheetal
would be treated properly and she will not face any problem in
future, Sheetal was sent to her matrimonial house. However,
on 09.04.2015, on account of receiving invitation of
engagement ceremony on telephone, from the maternal uncle
of deceased Sheetal, dispute was raised by the in-laws and
accused, which was informed to PW 1. When he assured that
he will do something about the situation. On the very night on
13.04.2015 at about 02:00 a.m. he received a call, informing
that Sheetal has hanged herself. Upon reaching the hospital he
came to know that Sheetal has expired. He has categorically
stated that, parent-in-laws and Accused No. 1 i.e. the husband
of Sheetal were not present in the hospital. None of the
relative of deceased Sheetal were present in the hospital,
therefore, he fled report in the police station, which was
initially not accepted, since already a report of accidental
death was lodged by Jangal Valake i.e. the maternal uncle of
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Accused No. 1. However, when complaint was lodged in the
offce of Superintendent of Police, the complaint came to be
registered on 13.04.2015.
In the cross-examination of the said witness, apart from
minor omissions about some of the statements made by him
regarding ill-treatment to the deceased and about her life style
as well as her cooking, nothing adverse to the case of
prosecution could be brought from the cross-examination of
PW 1. Therefore the prosecution has proved through
testimony of PW 1, that the accused alongwith his parents
have given ill-treatment to the deceased.
11. PW 3, Nitesh Maruti Ghanavat is the other brother of
deceased Sheetal, who in his deposition has categorically
stated that, Sheetal was brought back home after the ill-
treatment and she was ill-treated by her husband and parent-
in-laws. They held her responsible for the death of her brother-
in-law. There was also a demand of gold necklace, however,
since their fnancial condition did not permit, they have given
Rs.50,000/- to Sheetal. It was only after the assurance given
by Jangal Valake i.e. the maternal uncle of Accused No.1 that
sheetal will not be ill-treated, she was sent to her matrimonial
house. PW 3 has supported the testimony of PW 1, wherein he
has already stated about the dispute raised by the in-laws on
account of receiving invitation of engagement ceremony from
maternal uncle of deceased Sheetal. The husband and parent-
in-laws of Sheetal were angry on receiving a telephonic
invitation instead of personal invitation.
PW 3 has denied all the adverse suggestions given to him
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in the cross-examination, there is nothing brought on record to
doubt the credibility of the witness. The deposition of PW 1
and PW 3 has proved that the deceased has suffered ill-
treatment at the hands of Accused Nos. 1 to 3.
12. PW 2, Santosh Babanrao Udhane is the panch witness in
whose presence the spot panchanama was conducted. He
alongwith another panch Anandrao Sandbhor were present at
the time of spot panchanama. According to him, when they
entered the bedroom of the house of Accused No. 2 Baban
Payagude, an Odhani of pink and white colour was tied to the
fan in the bedroom. The said Odhani was hanging at the
distance of 5 feet 7 inches from the fan, below the Odhani there
was a stool of 3 feet and 1 inch height. The said Odhani was
seized by the police which he can identify. He admitted that,
the said panchanama was conducted in his presence and he
has put his signature on the panchanama. According to him,
when they reached the house of the accused, it was locked.
The lock of the house was broken by a small hammer, even the
latch of the bedroom was broken. Suggestions were given to
PW 2 that, the panchanama does not mention that the house
and the bedroom were locked, and it was deliberately avoided
to mention the same in panchanama at Exhibit-69. However,
the credibility of the said witness cannot be doubted for the
omission to mention about the lock of the house. One more
panchanama Exhibit -70 was conducted, in which only an
invitation card of the marriage of the accused and the
deceased has been seized alongwith photograph of the accused
and the deceased. The prosecution has proved the spot where
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the death of the deceased has occurred through testimony of
PW 2.
13. The testimony of PW 5 Dr. Uday Shivaji Pawar assumes
importance in order to decide, whether the death of deceased
Sheetal is murder or a suicide. The postmortem report, which
is proved through the testimony of PW 5, in its column No. 17
about surface wounds and injuries reads thus:
"1) Ligature mark: It is placed transversely over
anterior aspect of neck 7cm below chin 1.25 cm wide
and 0.5 cm deep in the skin.
It extends from left angle of mandible about 4
cm below going anteriorly and became transverse
and ends, at right carotid groove. It is absent
posteriorly.
At the level of cricoid cartilage it become more
wide about 3 cm, them divides into 2 marks, one ends
after 1.5 cm and other became transverse and
downwards.
Multiple contusion marks present around
ligature marks.
3 to 4 contusion marks about size of 1.5 cm
running anteriorly and medially on right side of neck.
2 to 3 of size of 1cm on left side of neck."
In column No. 18 there are the observations made about
the external examination such as (i) Fracture of atlanto
occiptial joint in the neck, (ii) Dislocation of matacarpo
phalyngeal joint of left ring fnger. (iii) Fracture of hyoid bone
and cricoid cartilage.
It is further observed in column No. 18(a) that the
injuries in column Nos. 17 and 18 are antemortem. There are
contusions over both the palms and contusion on right
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occipital region. Bleeding present over right occipital lobe. In
the fnal opinion for cause of death it is stated that, "death is
due to asphyxia secondary to strangulation with throttling".
In the examination-in-chief by the PW 5 Doctor, he has
categorically stated that, all the injuries are antemortem and
the external injuries of ligature marks are possible by
strangulation and throttling. The contusions are possible due
to fnger tips and nails at the time of throttling. The external
injury Nos. 2 and 3 i.e. the contusions on palm are possible due
to pressing of fngers on palm and external injury No. 4 may be
due to blunt trauma on head. Internal injury No. 1 found in
external examination is possible due to hanging and the
second internal injury may be possible while defending assault
or twisting the fnger. Third internal injury may be possible
due to throttling or strangulation. External injury No. 1 and
internal injury Nos. 1 and 3 are possible due to strangulation
by Odhani i.e. Article - B.
Accordingly, PW 5 has come to the conclusion that, fnal
cause of death is due to asphyxia secondary to strangulation
with throttling. The injuries mentioned above are suffcient in
ordinary course of nature to cause death. He has
acknowledged that, the said postmortem report has been
issued by him and he has affxed his signature on the same. In
his cross-examination while he was questioned about external
injuries on the body of the deceased, he has admitted that, if
the victim is in a position to defend, there are signs of defence
on the body. In the present case, according to him, he did not
fnd any struggle marks or signs of violence and injuries and
there are no abrasions on the neck of the deceased.
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In order to differentiate between the suicidal hanging
and strangulation, he was questioned about the difference
between the two. He has opined that, if a person commits
suicide by hanging, his body is fully suspend, in such case
there is a possibility of material used for hanging, touches the
chin and pressure of material may be deep in the skin. He has
categorically stated that, it is not correct to say that external
injury No. 1 i.e. ligature marks are possible due to suicidal
hanging. Hence considering the categorical statement that the
ligature marks are not due to suicidal hanging, the deposition
of the PW 5, Doctor does not support the defence of the
Appellant that deceased Sheetal had committed suicide by
hanging.
14. The learned counsel for the Appellant has relied on the
deposition of the Doctor in his cross-examination, wherein he
has admitted that, in case of hanging, there is no complete
circle of ligature marks and in the instant case, he has not
mentioned circumference of neck. Advantage is also tried to
be taken of the deposition of the Doctor, wherein he has given a
general opinion that, "head injury is possible if the body of a
person who committed suicide by hanging falls down on
ground by its own force or while taking down said body by
another person". However he still stands by his opinion that
all the injuries mentioned in the postmortem report are
antemortem. Therefore the theory tried to be projected by the
accused that the head injury which is caused to the deceased
might have been caused, on account of her body having fallen
to the ground due to its own force or while taking down the
body does not hold good.
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15. The learned counsel for the Appellant during the course
of hearing has placed on record the extracts from "Modi A
Textbook of Medical Jurisprudence and Toxicology", in order
to demonstrate difference between the hanging and
strangulation, which is given in a tabulated form. If we
compare the fnding given in the postmortem report to the
effects of strangulation, we fnd that in column No. 18 of the
said postmortem report, there is a fracture of hyoid bone and
cricoid cartilage. Cervical spine shows fracture and
dislocation of atlanto occipital joint. Upon going through the
comparison given between "hanging" and "strangulation", we
fnd that there are three injuries namely (i) carotid arteries,
internal coats ordinarily ruptured, (ii) fracture of the larynx
trachea and hyoid bone, (iii) fracture and dislocation of the
cervical vertebrae present in postmortem report. All the three
injuries which are shown to be as a result of strangulation are
found to be present at serial Nos. 18, 20 and 22 of the
postmortem report. There are multiple contusion marks
present around ligature marks. It has also been recorded in
column Nos.17 and 18 that the injuries are immediately
antemortem.
Upon going through the testimony of Doctor coupled with
the notes of postmortem, we do not fnd that there is any
inconsistency in the testimony of Doctor with regard to the
cause of death. In the cause of death it has been clearly opined
that, death is due to "asphyxia secondary to strangulation
with throttling". Considering the clear opinion given by PW 5
that the cause of death is strangulation and not by hanging, we
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do not fnd any substance in the defence raised by the
Appellant. The testimony of PW 5 is reliable, and there is no
doubt that he has supported the case of prosecution about
homicidal death of Sheetal.
16. Even in the testimony of PW 4 Ranganath Ghanavat, who
is the panch witness to the inquest panchanama of the body of
deceased Sheetal has stated that, there were the marks of
beating all over the body and there was contusion on the
backside of her head. Exhibit - 87 are the papers of admission
of deceased Sheetal to the hospital, in which there is an
endorsement about Sheetal being admitted to the hospital by
Vikas Baban Paygude, and in clinical note it has been stated
that, the deceased was brought by her husband in the hospital.
The time shown is at 02:40 a.m on 13.04.2015. In the
testimony of PW 1 he has categorically stated that, he went to
the hospital, there was no relative of deceased Sheetal present
in the hospital. The said statement of PW 1 has gone
unrebutted. There is no rebuttal to the said statement of PW 1.
The conduct of the Appellant which is brought on record by the
prosecution has gone unrebutted.
17. The learned counsel for the Appellant has contended
that there are omissions and the inconsistency in the
testimony of PW 1 regarding the ill-treatment given to Sheetal.
According to him, the reasons for ill-treatment such as she is
not able to cook properly; his claim regarding payment of
Rs.50,000/- made to Accused No. 1 in May, 2012 and August
2012 are not proved. However these depositions of PW 1 are
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not fatal to the case of prosecution, which would render the
testimony of PW 1 itself unreliable. There is nothing contrary
to the testimony given by PW 1 in his examination-in-chief,
which was controverted in the cross-examination. Similarly,
the learned counsel for the Appellant has pointed out certain
admission of PW 3 Nitesh Ghanavat regarding the payment of
Rs.50,000/- made to Sheetal, after the demand was being
made. According to the learned counsel for the Appellant, PW
1 and PW 3 being brothers of the deceased are interested
witnesses. Therefore in absence of testimony of independent
witnesses fnding of conviction ought not to have been given by
the Additional Sessions Judge. The minor omissions in the
deposition of the PW 1 and PW 3 as claimed by the Appellant
are not material, so as to doubt the credibility of these
witnesses.
18. The Additional Sessions Judge after appreciating the
evidence of spot panchanama (Exhibit 69), which was proved
by PW 2 Santosh Udane and another panch witness Anandrao
Sandbhor has given a fnding that, perusal of spot panchanama
(Exhibit- 69) reveals that, the height of ceiling from foor in
the bedroom was 9 feet. If the length of the Odhani, which was
5 feet, 7 inch from the fan and the height of stool which was of
3 feet, 1 inch is added, it exactly matches with height of the
room. There is only difference of 4 inch, if it is added to the rod
of the fan from top of the ceiling to the hook, where the fan is
hung, it makes up for the full height from the foor. If at all the
deceased had committed suicide, she would have pushed away
the stool after hanging herself with her legs, and it would not
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have been exactly below the ceiling fan, as it was found during
the panchanama. The spot panchanama discloses that the
stool was exactly below the ceiling fan with an Odhani hanging
from the ceiling. The height of the said Odhani was not
suffcient for hanging of a person. The height of the deceased
alongwith the height of stool and Odhani made all the height of
the room from the ceiling. Therefore, the Additional Sessions
Judge has drawn an inference that the deceased has not
committed suicide in all probabilities. Even the FSL report
(Exhibit- 98/1) about Sheetal's blouse, petty coat, sari and
clothes of Accused No. 2 were found to have blood stains of
human origin. If Sheetal had committed suicide by hanging,
there would not have been any blood stains on the clothes of
Sheetal as well as Baban. Hence the contention of the
Appellant that the deceased has committed suicide has not
been accepted by the Additional Sessions Judge, in view of the
cogent and reliable evidence on record proved by the
prosecution.
19. We do not fnd any arbitrariness or incorrect appreciate
of evidence in the fndings recorded by the Additional Sessions
Judge. As regards the reliance placed on the testimony of PW
5, regarding his testimony that, it is correct to say that there is
a possibility of committing suicide by hanging is concerned,
the said testimony has been rightly disregarded by the
Additional Sessions Judge, holding that, in the said opinion
merely possibility of committing suicide has been stated, no
frm opinion is given. Mere possibility expressed in response
to a question put by the defence, cannot take away the effect of
fnal cause for death recorded by the concerned Doctor.
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Even the statement of PW 2 Santosh Udane, who is
maternal uncle of the deceased has been objected to by the
defence on the ground that he is an interested witness.
However, PW 2 alongwith one more panch witness was present
during the spot panchanama whose signature have been
obtained on the said document, therefore, the objection
regarding interested witness would not sustain.
Hence in view of the testimony of PW 1 and PW 3 it is
proved by the prosecution that, the accused have given ill-
treatment to the deceased, hence offence under Section 498-A
of the IPC, has been proved. The fnding recorded by the
Additional Sessions Judge, to that effect does not need any
interference.
The testimony of the PW 5 Doctor has proved that, the
death of deceased is caused on account of strangulation and
throttling. Though he has stated that there is a possibility of
suicide, however his fnal cause of death in the postmortem
report, he has opined strangulation as cause of death. The
comparative chart produced by the Appellant on record from
the "Textbook of Medical Jurisprudence and Toxicology by
Modi", supports the evidence of PW 5, which records that, the
death is caused by strangulation and throttling. The accused
has not given any justifable reason about the allegations made
against him in his defence. In fact, it is a part of record that,
after admitting the deceased in the hospital he has not turned
up.
20. The Additional Sessions Judge has rightly observed that,
as per Section 106 of the Evidence Act, it was within his
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special knowledge of Accused No. 1 as to how the death of
deceased Sheetal has caused. Accused No. 1 has not discharged
the burden cast on him as per Section 106 of the Evidence Act.
The incident had taken place at odd hours of the night in the
house of Accused Nos. 1 to 3. It is therefore within the special
knowledge of the accused persons to disclose as to what the
reason for death of deceased Sheetal. Though the Appellant
has tried to take advantage of the fact that the bedroom door
was locked, when the police visited to conduct the spot
panchanama. The main entrance of the house as well as the
bedroom door were locked and required to be broken. But the
fact remains that the door was not latched from inside but
from outside. The accused persons were neither in the hospital
nor at their residence when the spot panchanama was
conducted. There is no record to establish that somebody else
has entered the house of Accused Nos. 1 to 3 at the odd hours
at night and caused death of Sheetal. Hence the prosecution
has proved on the basis of circumstantial evidence that the
accused has committed murder of deceased Sheetal.
21. The learned counsel for the Appellant has placed reliance
on the judgment of the Hon'ble Apex Court in case of Sharad
Birdhichand Sarda V/s State of Maharashtra 1 and in support
of his contention that this being a case of circumstantial
evidence when there are two views possible from the evidence
on record, one pointing to the guilt of the accused and the
other towards his innocence, the accused is entitled to the
beneft of one which is favourable to him. However, in our
opinion, in the present case there is no other view possible
1 (1984) 4 SCC 116
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20/20 Apeal.417.2019.odt
except that, the accused is guilty of causing death of his wife
Sheetal, which has been caused by strangulation.
22. The learned counsel for the Appellant has also placed
reliance on the judgment of the Apex Court in case of Shivaji
Chintappa Patil V/s. State of Maharashtra 2. In the said case,
there was a difference in the advance death certifcate which
stated the probable cause of death was "asphyxia due to
strangulation", while the postmortem report disclosed that the
cause of death was "cardio-respiratory arrest due to asphyxia
due to hanging", and the Senior Medical Offcer has concluded
that, it was a case of hanging. Therefore considering that
there is a difference in the facts of the present case, we do not
fnd that the said case law is applicable in the present case.
Upon going through the judgment of the Additional
Sessions Judge, Khed-Rajgurunagar, Pune and the paper-book
containing the testimony of witness alongwith the documents
placed on record, after appreciating the oral submissions
advanced by the respective parties, we have no hesitation in
upholding the Judgment and Order passed by the Additional
Sessions Judge, Khed-Rajgurunagar, Pune, convicting the
accused for offence punishable under Section 302 alongwith
Section 498-A of the IPC.
Hence, the Appeal fled by the Appellant fails and the
same is dismissed.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
2 (2021) 5 SCC 626
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