Bombay High Court
Ashabai Wd/O. Tukaram Panchal vs The State Of Maharashtra on 11 March, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:9079-DB
Cri Appeal No.361 of 2018 and 1066 of 2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.361 OF 2018
Balasaheb @ Bala Laxman Vaidya,
Age : 40 years [at present 44],
Occ. Labour, r/o. Navgan Rajuri,
Tq. and Dist. Beed ..Appellant
Vs.
The State of Maharashtra,
Through Police Station, Beed (Rural)
Tq. and Dist. Beed ..Respondent
AND
CRIMINAL APPEAL NO.1066 OF 2019
Ashabai wd/o. Tukaram Panchal,
Age : 40 years, Occ. Household,
r/o. Belura, Tq. and Dist. Beed,
At present in Yerwada Womens Central Jail
Pune ..Appellant
Vs.
The State of Maharashtra,
Through Police Inspector,
Police Station Beed (Rural),
Tq. and Dist. Beed ..Respondent
----
Mr.B.B.More and Mr.M.B.Ubale, Advocates for appellant in Criminal
Appeal No.361 of 2018
Mr.Saeed S. Shaikh, Advocate for appellant in Criminal Appeal No.1066
of 2019
Mrs.S.N.Deshmukh, APP for respondent-State in both appeals
----
2 Cri Appeal No.361 of 2018 and 1066 of 2019
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : FEBRUARY 12, 2025
PRONOUNCED ON : MARCH 11, 2025
JUDGMENT [Per R.G.Avachat, J.] :-
Both these appeals are decided by this common
judgment, since the appellants therein take exception to the
judgment of their conviction and consequential order of sentence
dated 25.04.2018, passed by learned Addl. Sessions Judge, Beed
(Trial Court), in Sessions Case No.135 of 2014. Vide the impugned
judgment and order, the appellants have been convicted and
consequently sentenced as under :-
Sr.
Section Punishment
No.
Imprisonment for life and pay fine of
1 302 r/w.34 of I.P.C. Rs.2,000/-, in default, R.I. for three
months
Imprisonment for life and pay fine of
2 120-B of I.P.C. Rs.2,000/-, in default, R.I. for three
months
R.I. for three years and pay fine of
Section 201 r/w.120-B
3 Rs.2,000/-, in default, R.I. for three
of I.P.C.
months
All the sentences were directed to run concurrently.
2. The facts, in brief, giving rise to the present appeals are
as follows:-
The appellant in Criminal Appeal No.1066 of 2019 -
Ashabai (original accused no.2) had extra-marital relationship with
the appellant in Criminal Appeal No.361 of 2018 - Balasaheb @ Bala
(original accused no.1). Both would meet each other frequently and
even go out of village. They had been to Shirdi twice and stayed
there overnight in a lodge. The appellant - Ashabai has three
children. In the month of May, 2014, her both sons had been to their
maternal grand-parents. As such, the appellant Ashabai was alone
at her residence along with her husband - Tukaram (deceased). On
the intervening night of 22nd and 23rd May, 2014, Tukaram was
strangulated to death. He was taken to a private clinic under the
pretext of he to have suffered heart-attack. She even informed the
village Police-Patil accordingly. The cousin of deceased (PW1 -
Yuvraj) was informed. He rushed to the village of the deceased. He
found the dead body of Tukaram at his house. He noticed ligature
mark around his neck. In the meanwhile, the police were informed.
Mortal remains of deceased Tukaram were subjected to autopsy. The
Medical Officer opined it to be a case of death due to "asphyxia due
to hanging". PW1 - Yuvraj, therefore, lodged the First Information
Report (FIR - Exh.38) against both the appellants.
3. A crime, vide C.R. No.67 of 2014, was registered with
Beed Rural Police Station. Both the appellants were arrested. It was
revealed during investigation that appellant - Balasaheb brought
`Restyl-0.5 mg.' pills. The pills were administered to the deceased
and during his sleep, he was strangled. The statements of the
persons acquainted with the facts and circumstances of the case
were recorded. Upon completion of the investigation, the charge
sheet was filed against both the appellants.
4. The trial Court framed charge(Exh.14). The appellants
pleaded not guilty. Their defence was of false implication.
5. The prosecution, to bring home the Charge, examined
twenty-three witnesses and adduced in evidence certain documents.
On appreciation of the evidence in the case, the order impugned
herein was passed.
6. Heard learned counsel for the parties. Learned counsel
for the appellants would submit that the case was based on
circumstantial evidence. There is no evidence to indicate that the
appellant - Balasaheb was at the house of the appellant - Ashabai on
the fateful night. They would further submit that the evidence in the
nature of the entries in the check-in registers of the lodge do not
bear photograph of the appellant - Balasaheb. The name recorded
therein was Balaji and not Balasaheb. Even if the evidence of some
of the witnesses is accepted that both the appellants were
emotionally involved with each other, there is nothing to indicate
that they had conspired to eliminate the deceased. The Police-Patil
(PW21 - Tukaram Dhawale) testified that the dead body of deceased
Tukaram was seen on Otla (outside) of his residence. The
prosecution did not examine any witness to prove that appellant -
Ashabai and deceased Tukaram were together on the fateful night.
It also failed to prove that no third person was with them during that
night. No sooner she realised her husband to have been critical, she
rushed him to a local clinic. The same rules out her involvement in
the crime. Both learned counsel, therefore, urged for allowing the
appeals.
7. Learned APP would, on the other hand, took us through
the entire evidence on record. She would submit that the son (PW2-
Samadhan) of the appellant - Ashabai has no reason to speak
against her. She would submit that there is voluminous evidence to
suggest extra-marital relationship inter se the appellants. The
appellant - Ashabai was reasoned with. She, however, continued
with her relationship. There used to be frequent quarrels between
her and deceased over the said issue. As such, the deceased was an
obstacle in her relationship with appellant - Balasaheb. On the
fateful night, appellant Ashabai and her husband Tukaram only were
present at her residence. Tukaram died of strangulation. It would
not be an act of single person, that too, of a lady. The appellant -
Balasaheb must have been a privy to the crime along with her.
There is evidence to indicate that in the early morning, both the
appellants took the deceased to the clinic of Dr. Vijaykumar Muley
(PW6). Same suggests this appellant too was with the other
appellant by the time the deceased met with homicidal death. The
Call Details Record (CDR) of the cellphones of both the appellants
would indicate that on the fateful day and night and even for long
there-before, both of them were in contact with each other. Both of
them used to visit Shirdi. They would stay in lodge overnight. There
used to be frequent quarrels between the deceased and his wife
(appellant-Ashabai). As such, the deceased was an obstacle for the
appellant - Ashabai. No other inference than both the appellants
conspired to eliminate the deceased and executed their intention
into action by strangling him, can be drawn. Learned APP would,
therefore, urge for dismissal of the appeals.
8. Considered the submissions advanced. Perused the
judgment impugned herein.
9. The case is based on circumstantial evidence. Before
adverting to the evidence on record, let us refer to the judgment of
the Apex Court in the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra, (1984) 4 SCC 116 as under :-
"153. A close analysis of this decision would show
that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:
(1) The circumstances from which the conclusion
of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) The circumstances should be of a conclusive
nature and tendency,
(4) They should exclude every possible hypothesis
except the one to be proved, and
(5) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused."
10. The following circumstances are relied on to bring home
the charge:-
(i) Homicidal death;
(ii) Motive;
(iii) False Explanation;
(iv) Both the appellants to be together in the early
morning of the fateful day.
Homicidal Death:-
11. PW11 - Dr. Hanumant was Medical Officer attached to
the Civil Hospital, Beed. On 23.05.2014, he was on post mortem
duty. He testified that Dr. Swati Pawar (PW12) was on duty on the
same day. The police referred the dead body of Tukaram for post
mortem. Dr.Swati Pawar conducted autopsy. He (PW11 -
Dr.Hanumant) assisted her in the said exercise. PW12 - Dr.Swati
referred to the post mortem report under her signature (Exh.63). In
her opinion, the cause of death of Tukaram was "asphyxia due to
hanging". She had preserved blood and heart of the deceased for
C.A. analysis and histopathology. The C.A. reports thereof finds place
at Exh.66 and 67. In her opinion, it was a case of homicidal death.
The deceased was done to death 6-8 hours prior to the post mortem.
Her remark at column no.17 of post mortem report reads thus :-
"- Oblique ligature mark present over neck
2.3 cm. below mandible of size 35 x 3 cm.
- Knot mark absent
- Ecchymosis present in subcutaneous place
corresponding to ligature mark
- Hyoid bone fractured."
12. The histopathology report rules out the deceased to have
been administered with sleeping/sedative pills. We, therefore, do not
propose to refer to the evidence of the three witnesses (PW5-
Dr.Ajaykumar, PW7 - Bharat and PW 9 - Raju) examined relation to
the appellant - Balasaheb to have obtained prescription from Doctor
and purchased `Restyl-0.5 mg.' pills. The fact, however, remains
the deceased met with homicidal death.
13. Now, the question is, whether the appellants are the
authors of the crime. PW1 - Yuvraj was cousin of Tukaram (sister's
son). He testified that all was not well between Tukaram and his wife
(appellant Ashabai) since one and half years prior to the incident. He
came to know about the illicit relationship between the appellants.
There, therefore, used to be quarrels between deceased Tukaram
and appellant Ashabai. He along with his father and other elderly
persons had been to the house of Tukaram. Appellant Ashabai was
reasoned with. She was advised to disassociate from appellant -
Balasaheb. He further testified that she, however, did not listen; the
relationship continued. He further testified that on 23.05.2014, in
the early morning, he was informed of death of Tukaram. He along
with his father, therefore, rushed to village Belura in a private
vehicle. He went to the house of the appellant - Ashabai. He
noticed the dead body laid in a tin-sheet shed. He noticed ligature
mark on the throat of the deceased. There was bleeding from both
the ears. He suspected something amiss. He, therefore, lodged the
FIR (Exh.38). True, the evidence of PW1 - Yuvraj indicates that he
lodged the FIR based on suspicion. He testified that both the grown
up sons of the deceased had come to his place for summer vacation.
As such, the appellant Ashabai and deceased Tukaram were the only
persons at their residence.
14. PW2 - Samadhan is none other than the elder son of the
appellant Ashabai. He testified that there used to be quarrel
between his parents on account of appellant Balasaheb visiting their
residence in the absence of his father. He further testified that on
one or two occasions, when he came home, he saw appellant
Balasaheb coming out of his residence; that time, his father was not
at their residence. He further testified that his mother would ask him
and his younger brother to go out of the house whenever the
appellant Balasaheb would visit her. He further testified that about
one and half months prior to the incident, quarrel had ensued
between his parents. His maternal uncle, grand-father and some of
the villagers had worked out settlement. His mother was reasoned
with to disassociate herself from appellant Balasaheb. She, however,
did not pay heed.
15. During the cross-examination of PW2 - Samadhan, an
omission that, when on two-three occasions, he visited the
residence, he saw appellant Balasaheb coming out of his house, was
brought on record. Although the same may sound material omission,
we find no reason to discard the evidence of PW2- Samadhan, son of
appellant Ashabai. He has no reason to have axe-to-grind against
his own mother. On the relationship between the appellants, we
have evidence of PW3 - Kisan Gawte, resident of the very village. He
testified to have seen both the appellants moving together on
motorbike. He, however, could not state the day, date and time
thereof.
16. PW4 - Sanjay was Manager of Hotel Sai Vishwakarma
Palace, Shirdi. He testified that about three years before, Balasaheb
and one lady had checked in the hotel. They stayed in room no.301
overnight. He placed on record an office copy of the bill and entry in
the check-in register, wherein the name of appellant is appearing as
`Balaji' and not `Balasaheb'. The lady stayed with him was stated to
be one Ashabai. She represented herself to be the wife of appellant
Balasaheb.
17. PW8 - Kisan Bhawar was another villager. He testified
that after visiting Paithan for Shasthi Yatra, he along with his relative
Nandabai went to Shirdi. He met both the appellants. At the
instance of appellant Balasaheb, they stayed in a hotel. Since he did
not have money to pay the hotel charges, it was the appellant
Balasaheb, who had paid the same. The entries in the check-in
register of the hotel have been placed on record. Same indicate
both the appellant Balasaheb and this witness, along with one lady
each, stayed in two separate rooms in the hotel. This witness was
categorical to state that appellant Ashabai was with appellant
Balasaheb.
18. PW10 - Mohammad Rafiq was the owner of the mobile
shop. He testified to have issued a sim-card to the appellant
Ashabai. He gave the number as 8308595937. PW13 - Narayan is
panch witness to the crime scene panchnama (Exh.70). The crime
scene is the house of appellant Ashabai. PW14 - Shaikh Sadeq is
panch witness to the seizure of Odhani/Dupatta. He did not stand by
the prosecution. PW15 - Pandurang Aahir is another witness to the
panchnama relating to obtaining specimen handwriting of the
appellant Balasaheb. PW16- Pandurang Gavate is panch to the
seizure of cellphone of appellant Balasaheb. PW17 - Vasant is
Manager of hotel Sai-Kishor Lodge. He testified that on 26.05.2014,
the police had visited his hotel and seized the check-in register. It is
at Exh.100. Room Nos.104 and 105 were given to the appellant
Balasaheb and Kisan (PW8) to stay along with one lady each. PW18
- Bhausaheb is the witness relating to collection of C.C.T.V. footage of
the hotel. PW19 - Rangnath is the police official, who conducted
inquest under panchnama (Exh.71). He carried out investigation of
the crime two days thereafter. PW20 - Jyotsna is the police official
who recorded the case of unnatural death on the basis of the report
lodged by the Police Patil of the village (PW21).
19. PW21 - Tukaram Dhawale was the Police-Patil of the
village. He testified that on hearing hue and cry, he visited the
house of the appellant Ashabai by 6.00 in the morning. He saw
Tukaram's dead body. He inquired with Ashabai. She told him that
Tukaram suffered chest pain. She further informed that she had
called a villager - Shivaji Hole and took her husband to the clinic of
Dr. Muley and then brought back. During cross-examination, he
testified that the relationship between the appellant Ashabai and her
husband were cordial. The dead body was lying on the otla of the
house. He further testified that anybody can go in front of the house
of deceased Tukaram.
20. PW6 - Dr. Vijaykumar would run a clinic at village Rajure.
He testified that in the wee hours (4 a.m.), the appellant Balasaheb
along with one lady and one person had come with one patient. The
appellant Balasaheb told him that there was chest pain to the
patient. He (Doctor) found ligature mark around the neck of the said
person. He also identified appellant - Ashabai.
21. Then, there is evidence in the nature of the C.D.R. and
the tower location of the cellphones of both the appellants. Same
has been duly admitted in evidence in view of the testimony of
PW22- Sachin, Nodal Officer of Idea Cellular Company. The C.D.R.
indicates that both the appellants were in contact with each other for
long and on the given night as well. In our view, the same suggests
that they were not together; but away from each other and hence,
required to contact on cellphone.
22. Appreciation of the aforesaid evidence, undoubtedly,
lead us to infer that there was illicit relationship between both the
appellants. The deceased met with homicidal death at his residence.
On the fateful night, appellant Ashabai and deceased were the only
persons at their residence. Their son - Samadhan (PW2) and another
son had been to their maternal grandparents for summer vacation.
The appellant Ashabai falsely informed the Doctor and the Police-
Patil, that Tukaram suffered chest pain. She wanted to make out a
case of heart-attack. The Medical Officer has, however, specifically
opined it to be a case of homicide. When both the appellants had
been to the Doctor (PW6) to have the deceased Tukaram examined,
a third person was with them. Same, therefore, do not lead us to
infer that both the appellants were together on the given night and
homicidal death was caused by both of them in pursuance of either
common intention (Section 34 of IPC) or conspiracy (Section 120-B of
IPC). Since appellant Ashabai told that her husband suffered chest
pain, appellant Balasaheb may be presumed to have so told to the
Medical Officer (PW6-Dr. Vijaykumar). The trial Court, relying on the
judgment of the Apex Court in the case of Trimukh Maroti Kirkan
Vs. State of Maharashtra (2006)10 SCC 681 has rightly
convicted the appellant Ashabai.
Based on the said evidence, the trial court ought not to
have convicted the appellant Balasaheb. In our view, there is no
clinching and convincing evidence to establish the charge against
appellant Balasaheb. He, therefore, deserves acquittal.
23. In the result, the appeals are disposed of in terms of the
following order:-
(i) Criminal Appeal No.361 of 2018 preferred by appellant -
Balasaheb @ Bala Laxman Vaidya is allowed. The impugned
judgment and order dated 25.04.2018, passed by learned Addl.
Sessions Judge, Beed (Trial Court), in Sessions Case No.135 of 2014,
convicting and sentencing the appellant - Balasaheb @ Bala Laxman
Vaidya for the offences punishable under Sections 302 r/w. 34, 120-B
and Section 201 r/w. 120-B of Indian Penal Code is set aside. He is
acquitted of the said offences.
(ii) Vide order dated 12.02.2025 passed by this Court,
appellant - Balasaheb has been released on bail bonds. His bail
bonds stands cancelled. Fine amount paid by the appellant-
Balasaheb, if any, be refunded to him.
(iii) Criminal Appeal No.1066 of 2019 preferred by appellant -
Ashabai wd/o. Tukaram Panchal is partly allowed. The conviction
recorded against her vide the impugned order dated 25.04.2018, for
the offences punishable under Sections 302 and 201 of Indian Penal
Code, is maintained. The substantive sentences imposed against her
for these offences too, stand maintained. Both the sentences shall
run concurrently. She is, however, sentenced to pay fine of
Rs.1,000/- and Rs.500/-, respectively, for the said offences, and in
default thereof, to undergo R.I. for ten days, each.
(iv) The conviction and sentence recorded against appellant -
Ashabai for the offences punishable under Section 120-B of Indian
Penal Code is set aside. She is acquitted thereof.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
