Bombay High Court
Vasant Gunaji Kale vs The State Of Maharashtra on 23 September, 2024
Author: R.G. Avachat
Bench: R.G.Avachat
2024:BHC-AUG:24636-DB
Cri Appeal No.497.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.497 OF 2022
Vasant s/o. Gunaji Kale,
Age : 58 years, Occ. Nil,
r/o. Kundi, Tq. Dharur,
Dist. Beed. ..Appellant
Vs.
The State of Maharashtra,
Through Police Station:Shirsala,
Tq. Dharur, Dist. Beed ..Respondent
----
Mrs.Vaishali Shinde, Advocate for appellant (appointed)
Ms.S.J.Salgare, APP for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : SEPTEMBER 23, 2024
JUDGMENT (Per R.G. Avachat, J.):
-
The challenge in this appeal is to the judgment of
conviction and order of consequential sentence dated 31.05.2019,
passed by learned Addl. Sessions Judge, Majalgaon (trial court), in
Sessions Case No.24 of 2017. Vide the impugned order, the appellant
has been convicted for the offence punishable under Section 302 of
Indian Penal Code and therefore, sentenced to suffer rigorous
imprisonment for life and pay fine of Rs.5,000/-, in default, to suffer
simple imprisonment for two months.
2. The case of prosecution before the trial court, in short,
was as under:-
The appellant along with his wife Ashabai (deceased)
would reside together at village Kundi, Tq.Dharur, Dist. Beed. The
appellant has two sons and a married daughter. There used to be
quarrels between the appellant and his wife. He would suspect her
character. On 15.03.2017, he took his wife to the field for harvesting
gram-crop. He, however, returned home alone. His married daughter
- Radha (PW 5) had come to his home. She inquired with him about
her mother. He told her to have killed Ashabai in the field. The
appellant took two Bhakaris and ran away.
3. Radha (PW 5), thereupon, raised hue and cry. Bhaurao
(PW 2), her father's uncle, was residing in the neighbourhood. He
came to her and learnt about the appellant to have killed his wife.
He (PW 2 - Bhaurao), therefore, lodged the FIR (Exh.27) with Shirsala
Police Station. A crime vide C.R. No. 75 of 2017 was registered and
investigated as well. Upon completion of the investigation, the
appellant was proceeded against by filing the charge sheet. The trial
court framed Charge (Exh.7). The appellant pleaded not guilty. His
defence was of false implication. To bring home the Charge, the
prosecution examined twelve witnesses and adduced in evidence
certain documents. The trial court, on appreciation of the evidence
in the case, convicted the appellant and consequently, sentenced as
stated above.
4. Heard learned counsel for the parties. Learned counsel
for the appellant would submit that PW 2 - Bhaurao (informant) gave
vital admission in his cross-examination that the police had obtained
his signature on blank paper. She meant to say that it was converted
into FIR. It was not read over to him. According to her, the evidence
of PW 2 - Bhaurao, therefore, was unreliable. She would further
submit that there was house-warming ceremony in the
neighbourhood of the house of the appellant. It was about little past
3.00 p.m. On hearing the alleged hue and cry of Radha, not a single
neighbour had gathered there. Same suggests nothing had
happened. Turning to the evidence on record, she took us through
the evidence of PW 1- Sambhaji, panch witness to the crime scene
panchnama (Exh.23). She brought to our notice his evidence that
the labels on the articles, allegedly seized from the crime-scene, did
not bear label containing his signature. She would further submit
that the Investigating Officer has admitted that an axe seized from
the crime scene did not bear blood stains.
5. Learned counsel for the appellants would further submit
that the so called extra-judicial confession made by the appellant to
his daughter is a very weak piece of evidence. She relied on the
judgment of the Apex Court in the case of Pradeep Kumar Vs.
State of Chhattisgarh, (2023)5 SCC 350. According to her, the
statement of Radha (PW 5) was recorded four days after the incident.
Delay has not been explained. She would further submit that since
the case was based on circumstantial evidence. She relied on the
judgment of the Apex Court, in the case of Anwar Ali and anr. Vs.
State of Himachal Pradesh, 2021 AIAR (Criminal) 80, wherein,
it is observed thus :-
B. Circumstantial evidence - Scope and sweep
of - In case of a circumstantial evidence - The
circumstances, taken cumulatively - should
form a chain so complete that there is no
escape from the conclusion that within all
human probability the crime was committed
by the accused and none else and the
circumstantial evidence in order to sustain
conviction must be complete and - Incapable
of explanation of any other hypothesis than
that of the guilt of the accused and - Such
evidence should only be consistent with the
guilt of the accused but should be inconsistent
with his innocence
6. Learned counsel for the appellant would further submit
that petty quarrels between the husband and the wife could not be
termed to be the motive to do away the wife. According to her, there
was no evidence that a month before the alleged incident, there was
quarrel between the appellant and his wife. Their son Rangnath did
not speak about the same. She would further submit that the
deceased had suffered multiple injuries and on arrest of the
appellant, his blood stained shirt was seized. It would, therefore, be
unnatural on the part or Radha not to notice any blood on the clothes
of the appellant, while he, allegedly, made the extra-judicial
confession. The evidence of PW 5 - Radha is hearsay. Learned
counsel further relied on the judgment of the Apex Court in the case
of Kalinga alias Kushal Vs. State of Karnataka By Police
Inspector, Hubli, (2024)4 SCC 735, to ultimately urge for allowing
of the appeal.
7. Learned APP would, on the other hand, submit that the
25-years old married daughter of the appellant had no reason to give
evidence against her own father. The extra-judicial confession has
been made by the appellant to none else than his daughter. The
evidence of PW 2 - Bhaurao and daughter PW 5 - Radha would
indicate that on the given day, the appellant along with his wife went
to the field for harvesting gram-crop. By little past 3.00 p.m., he
returned home and made extra-judicial confession. The appellant
then fled taking Bhakaris with him. On hearing the hue and cry
raised by PW 5 - Radha, uncle of the appellant (PW 5 - Bhaurao)
arrived. The persons visited the field of the appellant to find Ashabai
to have been lying dead in the injured condition. The extra-judicial
confession made by the appellant, thus, proved. The appellant did
not offer any explanation, as to why did he leave his wife behind and
returned home alone. He has relied on the following authorities to
ultimately urge for dismissal of the appeal:-
(i) Trimukh Maroti Kirkan Vs. State of
Maharashtra, 2007 Cri. L.J. 20;
(ii) Nivrutti Kishan Hire Vs. State of
Maharashtra, AIR Online 2023 Bom
8. Considered the submissions advanced. Perused the
evidence on record and the judgment impugned herein. Also perused
the authorities relied on.
9. The case is based on circumstantial evidence. The
prosecution proposes to rely on following circumstances:-
(i) Homicidal death;
(ii) Motive;
(iii) Extra-judicial confession and non disclosure
of the fact within the exclusive knowledge of
the appellant.
Homicidal Death :-
10. PW 9 - Dr.Pramod conducted autopsy on the mortal
remains of deceased Ashabai. He noticed following injuries on her
person:-
1. Two were incised injuries over right high
partial region of sizes, 3x0.5 cm. and 4x0.5 cm.,
mussel deep margins infiltrated with blood.
2. Incised injury over right occipital region of size
4x5 cm. muscle deep, margins infiltrated with blood.
3. Two incised injuries over right partial region of
sizes 6x0.5 cm. bone deep and 3x0.5 cm., muscle deep
margins infiltrated with blood.
4. Chop injury over right lateral upper third region
of neck of size 9.5 x2.5 cm. muscle deep. Obliquely
placed and beveling present over upper margins,
margin infiltrated with blood.
5. Chop injury over right lateral lower third region
of neck of size 6.5 x 1 cm. muscle deep, horizontally
placed with inner angle showing tailing of 2.5 cm in
length, margins infiltrated with blood.
6. Incised injury over right lateral lower third
region of neck of size 5x0.1 cm., skin deep horizontally
placed, margins infiltrated with blood.
7. Chop injury over left anterior-lateral aspect in
upper third region of neck of size 12x2 cm. bone deep,
obliquely placed with inner angle showing tailing of 4
cm. length, margins contused and infiltrated with blood,
underline tissue shows clearcut, external carotid-artery
and internal jugular vein shows clean cut with fracture of
body of C-3 vertebra with clean cut fractured edges and
infiltration of blood.
8. Chop injury over left lateral aspect in upper third
region of neck of size 7x1 cm., muscle deep, obliquely
placed with upper margins shows beveling, margins
contused and infiltrated with blood.
9. Incised injuries over left anterior middle third
region of neck of size 4x1 cm., muscle deep,
horizontally placed, inner angle shows tailing of
length 4.5 cm, margins contused and infiltrated with
blood.
10. Chop injury over left anterolateral aspect, in
middle third region of neck of size 6x2.5 cm underline
muscle and tracheal rings shows clean cut injury,
horizontally placed, lower margins shows behaving
margins contused and infiltrated with blood.
11. Incised injury over left forearm, lower third,
posterior surface of size 5x1 cm. bone deep with interline
fractured of lower third shaft of ulna, margins infiltrated
with blood.
12. Incised injury over right hand, dorsum of size 3.05
cm. muscle deep proximal to left index and middle finger,
margins infiltrated with blood.
PW 9 - Dr.Pramod opined the deceased to have died of
"Hemorrhagic shock due to multiple incised injuries over neck".
Inquest panchnama (Exh.56) is consistent with the injuries noticed
by the Medical Officer on the person of the deceased. As such, the
fact that Ashabai met with homicidal death is duly proved.
Motive and extra-judicial confession and non disclosure of
the fact within the exclusive knowledge of the appellant :-
11. PW 5 - Radha, daughter of the appellant, testified that on
15.03.2017, both appellant and her mother had been to their field for
harvesting gram-crop, as there was possibility of raining. Her mother
had told her that there was house-warming ceremony in the
neighbourhood and she would come to take meal there. It is further
in her evidence that the appellant alone returned home by 03.00
p.m. with a gunny bag containing gram. She inquired with him twice
about her mother and questioned him, as to why she (Ashabai) did
not return. The appellant did not speak for a while. He asked her to
pack two Bhakaris. She obliged. The appellant then went out of the
house and told to have killed her mother in the field. He then ran
away. She tried to chase him and raised shouts. It is further in her
evidence that her grandfather - Bhaurao (PW 2) and one Baburao
also followed her. She related them her father to have killed her
mother. Both of them, therefore, went to the field. On their return,
they told her about the incident to have taken place.
12. It is further in the evidence of PW 5 - Radha that three
months before the incident, she had been to her parental house for
delivery. That time, there was quarrel between the appellant and
her mother. The appellant had threatened to kill her. He was
suspecting her character. Her brother, who used to be at
Aurangabad, had just come that day. He, therefore, took Ashabai to
her maternal house, at Waghalgaon. Thereafter, the appellant
brought Ashabai back from her parental house with the assurance to
treat her well. According to her (PW 5), she gave statement before
learned Judicial Magistrate, First Class. She referred the same
(Exh.35)
13. PW 5 - Radha was subjected to cross-examination. True,
she did not speak about having seen blood stains on the clothes of
the appellant when he had returned home. She even did not speak
about the persons in the neighbourhood to have gathered at her
residence on hearing her hue and cry. It is also true that her brother
did not speak about his sister (Radha) to have told him the appellant
to have made her the extra-judicial confession. It is also true that
her statement was recorded four days after the incident.
14. Close reading of the cross-examination of PW 5 - Radha
would indicate that nothing has been brought on record to suggest
her to have any reason to speak against her own father. She was 25
years old lady (a person of understanding). Her evidence before the
court has been reinforced by her statement (Exh.35) recorded under
Section 164 of the Code of Criminal Procedure. What has been told
to her by the appellant as extra-judicial confession, was found to be
correct since PW 2 - Bhaurao immediately went to the field and saw
the appellant's wife dead. The crime-scene panchnama (Exh.23)
reinforces the same, although the article seized from the crime-
scene did not bear labels containing signatures of the panch
witnesses .
15. PW 2 - Bhaurao is uncle of the appellant. It is in his
evidence that on hearing cries of Radha (PW 5), he went to her
house. She related him the appellant to have told her about
committed murder of his wife. He, thereafter, went to the field. He
saw the dead body of Ashabai. Some persons gathered there. He
then lodged the FIR (Exh.27). True, in the cross examination, he
testified that the police had obtained his signature on blank paper
and contents thereof were not read over to him. To all other
questions, he stood the ground. He denied to have not been told by
Radha the appellant to have made extra-judicial confession.
16. PW 3 - Nanasaheb and PW 4 - Kishor, panch witnesses to
the seizure of clothes of the appellant, did not stand by the
prosecution. PW 6 - Kautaji's evidence is only to the effect that on
hearing about the news of murder of Ashabai, he went to the field of
the appellant along with Bhaurao (PW 2) and one Babarao Kale and
noticed the dead body of Ashabai. It is true that PW 2 - Bhaurao did
not state to have accompanied by PW 6 - Kautaji. The fact, however,
is that the evidence was recorded little over one and half years after
the incident. PW 2 - Bhaurao might not have remembered PW 6 -
Kautaji to have been with him. Even if we ignore the same, the fact
remains that the dead body of Ashabai was found in her own field.
She had suffered multiple injuries.
17. PW 7 - Manik is son of the appellant. He was residing at
Aurangabad. He came to village Kundi in response to a phone call.
His evidence indicates that on his coming to the village, his sister -
Radhabao (PW 5) related him about the appellant to have made the
extra-judicial confession. The evidence of this witness is not of much
importance, since he was not in the village on the given day.
18. PW 8 - Rangnath is another son of the appellant. He
would reside along with his mother and the appellant, at village
Kundi. His evidence, however, indicates that he had gone to village
Shirsala between 10.00 am. and 11.00 am. on the fateful day. As
such, he was not aware that the appellant along with his mother had
been to the field by 11.00 in the morning. Although he testified
accordingly, his evidence however indicates that pursuant to the call
made by his friend Vijay, he rushed to the village. His father was not
there. His evidence would be helpful for the prosecution to indicate
that the appellant was in the village on the given morning but was
not there while the dead body of his wife was found. It reinforces the
case of PW 5 - Radha that the appellant fled from the village little
past 03.00 pm. PW 10 - Tulshiram is Police Constable, who carried
the Muddemal articles to the Regional Forensic Science Laboratory,
while PW 11 - Sanjay is witness to the inquest panchnama (Exh.56).
It was PW 12 - Harishkumar, who did investigation of the crime.
19. It is true that the extra-judicial confession is generally
considered to be a weak piece of evidence. It is, however, not that
the same cannot be acted upon. The extra-judicial confession is
generally made to a person in confidence. In the case in hand, it
was made by the appellant to none other than his grown up
daughter - Radha (PW 5). She had no reason to speak against her
own father. The extra-judicial confession is proved true, since PW 2 -
Bhaurao, immediately, rushed to the field of the appellant to find
Ashabai to have suffered multiple injuries and was dead. The
appellant was in the village on the given day. PW 5 - Radha testified
that the appellant had taken his wife to the field for harvesting gram
crop by 11.00 in the morning. The appellant alone returned home by
03.00 p.m. and on inquiry, he told to have killed her mother. It is
also in her evidence that the appellant was suspecting her character.
In view of Section 106 of the Evidence Act, it was for the appellant to
explain the circumstances, which were exclusively within his
knowledge. Those circumstances are relating to what had happened
with his wife post he took her to the field. He did not offer any
reason as to why he alone returned home from the field. As such, all
the circumstances relied on by the prosecution have been proved
upto the hilt. It is the appellant and none else, who has committed
murder of his wife.
20. In view of the above, the trial court has rightly convicted
the appellant for the offence of murder and consequently, sentenced
to suffer life imprisonment. We find no reason to interfere with the
impugned order. The appeal, thus, fails. The same is dismissed.
21. Fee of learned counsel appointed to represent the
appellant is quantified at Rs.12,000/- (Rupees Twelve Thousand).
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
