Kailas Damu Gaikwad vs The State Of Maharashtra on 4 August, 2017

1 Appeal 65 of 2001

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No. 65 of 2001

Kailas s/o Damu Gaikwad,
Age 27 years,
Occupation : Agriculture,
R/o Naigaon, Taluka Kannad,
District Aurangabad. .. Appellant.

Versus

The State of Maharashtra. .. Respondent.

—-
Shri. S.G. Ladda, Advocate, for appellant.

Shri. R.V. Dasalkar, Additional Public Prosecutor, for
respondent.
—-

Coram: T.V. NALAWADE
SUNIL K. KOTWAL, JJ.

Judgment reserved on : 31 July 2017

Judgment pronounced on : 04 August 2017

JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed to challenge the judgment

and order of conviction given to the appellant by learned

Additional Sessions Judge Aurangabad in Sessions Case

No.117/1997. The appellant is convicted and sentenced

for offences punishable under sections 302 and 498-A of

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2 Appeal 65 of 2001

Indian Penal Code. His parents were also tried for these

offences but they are acquitted. Both the sides are heard.

2) The deceased Sunita was daughter of first

informant Gangubai, resident of Palshi, Tahsil Kannad and

she was given in marriage to present appellant, Kailas

when the deceased was aged about 6 years. The accused

hails from Naigaon. After 6 years of the marriage i.e.

when Sunita completed 12 years of the age, she was sent

for cohabitation to the house of present appellant.

3) The ill-treatment to the deceased was started

when sister-in-law of the first informant namely Kadubai

expressed her desire to sell her agricultural land which

was about one year prior to the date of incident. Kadubai

has no male issue though she has three daughters.

Present appellant wanted to purchase the said land but he

was not having money. He then requested first informant

to give him money for purchasing the land. Even promise

was given by the parents of the deceased Sunita to give

Rs.40,000/- to the present appellant and he was to make

arrangement of the remaining amount.

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3 Appeal 65 of 2001

4) About 6 months prior to the date of incident

one Raibhan Jadhav of village Naigaon purchased the land

of Kadubai for consideration of Rs.1.35 lakh. After that

present appellant and his father went to the house of first

informant along with Sunita and they requested to give

money for purchasing the land. The first informant had

taken Rs.25,000/- with her to help present appellant. As

Kadubai was not available and she had gone to village

Sarola, all these persons went to Sarola. There, Maruti

Jangle, a relative of Kadubai met them and informed that

the land was already sold by Kadubai and so there was no

question of accepting money from the appellant. When

they were returning they met Kadubai on the way and she

also informed that the land was already sold by her. Upon

that father-in-law of the appellant rushed at the first

informant in anger. Due to this incident, the amount of

Rs.25,000/- which was with the first informant was not

given to the appellant by first informant. Then there was

quarrel between present appellant and Kadubai.

5) The appellant and his parents had become

angry as the land was not sold to them by Kadubai who is

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4 Appeal 65 of 2001

close relative of the first informant. Then they started

asking the deceased to bring Rs.40,000/- from her parents

as they wanted to purchase other land. In that year due to

demand, Sunita was not sent to her parents’ house on the

occasion of Diwali festival. On the last occasion, the father

of Sunita visited the house of the husband of Sunita to

bring Sunita to parents house for few days. Even some

amount was paid by the parents of Sunita to the appellant

and he was convinced. Then promise was given to send

Sunita to her parents house for few days. The father of

Sunita had returned from the matrimonial house of Sunita

on Friday and there was promise to send Sunita on

Tuesday. On the night of Friday itself a message was

received by them that Sunita was dead. They went to

Naigaon and they saw the dead body which was already

taken out from the well from the field of the appellant.

6) On 29-11-1996 the present appellant and the

deceased were present in the field where the well is

situated. After 2.00 p.m. of that day the appellant

approached the Police Patil and informed that Sunita had

probably fallen in the well. The Police Patil went to the

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5 Appeal 65 of 2001

well. He could not see the dead body. But he gave report

to the concerned police station. On the basis of the said

report, AD No.56/1996 was registered under section 174

of the Code of Criminal Procedure in Pishor Police station.

7) Police visited the spot and they took out the

dead body. Spot panchanama was prepared and the

inquest was also prepared. The dead body was then

referred for post mortem examination. Doctor conducted

post mortem on 30-11-1996 and he gave opinion that the

death had taken place due to head injury, cerebral

concussion. Viscera was preserved to ascertain presence

of poison.

8) Mother of Sunita then gave report on 1-12-1996

to Pishor Police Station and Crime No.133/1996 came to

be registered for offences punishable under sections 302,

498A, 34 of the Indian Penal Code against the present

appellant and his parents. The appellant came to be

arrested. During the course of investigation he gave

statement under section 27 of the Evidence Act and on the

basis of the statement, article which was used for causing

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6 Appeal 65 of 2001

injury was recovered and similarly chappal and pieces of

bangles of the deceased came to be recovered from the

spot where injuries were caused. From the house the

accused then produced two sliver rings of toes which were

in the house of deceased and they came to be seized

under panchanama. Statements of the witnesses including

relatives of the deceased on parents side came to be

recorded. Statements of some villagers of the village of

the appellant also of the Police Patil came to be recorded

and charge-sheet came to be filed for the aforesaid

offences. After committal of the case by the Judicial

Magistrate, charge came to be framed for aforesaid

offences and also for offence punishable under section

201 of the Indian Penal Code. All the accused pleaded not

guilty. The prosecution examined in all 9 witnesses to

prove the offence. The trial Court has held that it was

homicidal death and it was caused by causing injury to

head and then dead body was thrown by the present

appellant into the well. It is further held that there was ill-

treatment to the deceased from the appellant on the count

mentioned in the F.I.R.

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7 Appeal 65 of 2001

9) In the present proceeding learned counsel for

the appellant submitted that the entire case is based on

circumstantial evidence and the circumstances are not

fully established and they have not completed the chain to

point the finger only to the appellant as culprit. The

learned counsel submitted that the appellant had

immediately informed to the Police Patil after the fall of

the deceased into the well and so this conduct was not

consistent with the guilt. The learned counsel submitted

that possibility that deceased had suffered heart attack

when she had gone to well to fetch water and due to that

symptoms of death due to drowning were not noticed by

the doctor is not considered by the trial Court. He placed

reliance on the cases reported as AIR 1981 SC 765

(Shankarala Dixit v. State of Maharashtra) and AIR 1957

SC 589 (Bhagwan Das v. State of Rajasthan) . On the other

hand, the learned Additional Public Prosecutor submitted

that it was necessary for the appellant to explain the

circumstances as the death is homicidal in nature and only

the appellant had the opportunity to cause the death. The

learned APP submitted that the circumstance that it is

homicidal death further indicates that false information

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8 Appeal 65 of 2001

was given by the appellant to Police Patil. He submitted

that there was motive for the offence also as there is

evidence on the illegal demand made by the appellant to

the parents of the deceased. The learned Additional Public

Prosecutor submitted that the provisions of sections 106

and 114 of the Evidence Act need to be used and the trial

Court has not committed any error in holding the

appellant guilty of both the offences.

10) The defence has disputed that Sunita died

homicidal death. In view of this circumstance, the

evidence given on cause of death is being discussed first.

To prove its case the prosecution relied not only on the

opinion evidence of the doctor, Dr. Sanjay (PW 7) but also

on other circumstances.

11) Dr. Sanjay (PW 7) has proved the notes of post

mortem report in his evidence. He conducted the post

mortem examination of the dead body on 30-11-1996

between 4.50 p.m. and 6.p.m. He found following external

injuries on the dead body :

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9 Appeal 65 of 2001

(1) Abrasion on right axilla region 1/2 x 1/2 cm infra
axillary area, reddish in colour.

(2) laceration below right eye 3×1/2 cm with blood clot.

(3) Laceration on right upper eye lid 1x/1.2 cm blood
clot placed transversely.

(4) Laceration on left eye upper lid of size 3×1 cm pale in
colour placed obliquely.

(5) Laceration whole upper lip, pale and transverse

(6) Left ear lobule eaten by aqua animals.

12) Dr. Sanjay (PW 7) has given evidence that

injury Nos.1 to 3 found on the dead body were ante

mortem and injury Nos.4 to 6 were caused by aqua

animals.

13) Dr. Sanjay (PW 7) has deposed that on internal

examination he found contusion over left parietal region of

the size of 2 x 1 cm and that had caused fracture of skull.

He has deposed that this injury had developed subdural

haemotoma, clot and it was over half portion of frontal

region. Thus, there was injury to the head and brain. The

oral evidence given by Dr. Sanjay is consistent with the

post mortem notes at Exhibit 26. Separate opinion was

sought by the investigating agency of this Doctor on the

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10 Appeal 65 of 2001

cause of death and opinion was accordingly given which is

at Exhibit 25. Viscera was sent for chemical analysis but

no poison was detected in the viscera.

14) In support of the aforesaid expert opinion given

under section 45 of the Evidence Act, there is reason

given by the doctor. The defence of the accused is that the

deceased accidentally fell into the well and she had died

due to drowning. The doctor has given evidence that lungs

were congested and no froth was noticed in the lungs.

Similarly there was no water found in the stomach. There

was blood containing fluid in buccal cavity. These

symptoms according to the doctor (PW 7) are of homicidal

death. The death took place due to head injury and there

were no symptoms indicating that death took place due to

asphyxia due to drowning.

15) In the cross-examination of the doctor (PW 7) it

was suggested to the doctor by defence counsel that after

cardiac arrest if a person falls in the well he may not gulp

water. He has admitted this suggestion but the evidence

remains on the fact that lung was congested and there

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11 Appeal 65 of 2001

was no froth in it. In addition to that, other symptoms

were present as already quoted.

16) It was suggested to Dr. Sanjay (PW 7) that

injury No.1 can be caused due to fall in well and if head

comes into contact of wall of the well. This suggestion is

denied by the doctor by giving reason that more grievous

surface injury will be found on the head when there is

such fall. The injury on the head was caused by hard and

blunt object as per the opinion given by this doctor. The

evidence shows that weapon, wooden agricultural article,

was recovered on the basis of statement given by the

accused under section 27 of the Evidence Act but that

article was not confronted to the doctor by the

prosecution during his evidence. Though there is such

situation the evidence is there that such injury can be

caused by hard and blunt object and so the head must

have been hit against hard and blunt object or the hard

and blunt object must have been hit on the head. Thus the

medical evidence rules out the possibility of death due to

drowning.

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                                              12           Appeal 65 of 2001

17) The evidence of spot panchanama which is at

Exhibit 31 is admitted by defence. The defence has not

disputed that the well in which the dead body was found

belongs to the accused. The description of the well is

given in the spot panchanama. The description shows that

by using heap of stones on surface of the well a wall like

structure was created surrounding the well. At one place

in this structure by putting wooden log scope was created

to lift water from the well manually. However, there was

no rope on this log and no pot which ought to have been

there for taking water was found on the spot. The

panchanama also does not show that any pot was

recovered from the water of the well. The water was at a

distance of 6 feet from the ground level and the total

depth of the water was around 22 ft. Thus the total depth

of the well from ground level was around 28 feet.

Evidence of the investigating officer on the spot

panchanama shows that there was no possibility of

accidental fall in this well.

18) In view of the description of the well it was not

possible to take water simply by bending into the well. In

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13 Appeal 65 of 2001

that case also a pot could have been found. There were no

steps for getting into the well and electric motor was

installed inside of the well for pumping water. There were

no chappals of the deceased in the vicinity of the well or

inside of the well. When police reached the spot the dead

body was at the bottom of the well and from there it was

taken out. All these circumstances rule out possibility of

accidental fall. As the death was not due to drowning, it is

not possible to infer that the deceased had jumped into

the well to commit suicide. Thus the possibility of suicide

is also ruled out. Thus, only one possibility remains and

that is of homicidal death. This leads to inference that

after murdering Sunita, her dead body was thrown into

the well. It needs to be ascertained as to who did that act.

19) The prosecution has given evidence on motive

and also other circumstances. Gangubai (PW 1) mother of

the deceased has given evidence that accused No.2

wanted to purchase agricultural land of one Kadubai,

close relative of Gangubai. Kadubai intended to sell this

land. The accused approached the parents of the deceased

and they requested for help by giving some cash amount

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14 Appeal 65 of 2001

like Rs.40,000/-/ Evidence is given that Kadubai sold the

land to third person and then the dispute started. Even

after sale of the land by Kadubai, accused were insisting

to see that the land is given to him.

20) Gangubai (PW 1) has deposed that the

deceased used to disclose about the ill-treatment given to

her due to aforesaid circumstance, non fulfillment of the

demand of the accused and there was also direct demand

from the accused of such nature. Evidence is given that

the accused had stopped sending the deceased to parents

house as he had become angry due to the aforesaid

circumstances. Evidence is given by Gangubai (PW 1) that

her husband Suryabhan had gone to the house of the

accused to convince the accused and to bring the

deceased to the house for few days but he returned alone

and on the same day, in the night time they received news

that their daughter was dead.

21) Evidence of Suryabhan (PW 2), father of the

deceased, is similar to the evidence of PW 1. Kailas (PW

5), brother of the deceased has given similar evidence.

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15 Appeal 65 of 2001

He has added that at least on two occasions he had tried

to bring Sunita from the matrimonial house for short stay

but the accused had refused to send her to the parents

house as they were angry due to aforesaid circumstances.

22) The prosecution has examined Kadubai (PW 6)

also. This lady has given evidence that she wanted to sell

the land but when she demanded the price of Rs.1.25 lakh

the accused were not ready to give that price and so she

sold the land to one Raibhan Jadhav. This land was sold six

months prior to the date of the incident. Kadubai has

given evidence that even after sale of the land to Jadhav,

the mother of the deceased was insisting to see that

consideration is returned to Jadhav and the land is given

to the accused. She has given evidence that she heard

that there was ill-treatment to the deceased on that count.

It is true that her police statement was recorded late at

least by 10 days. But the circumstance that her name was

mentioned in the FIR is there and due to that not much

can be made out due to the circumstance of giving police

statement late.

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                                        16         Appeal 65 of 2001

23) To some extent the contents of the FIR are not

consistent with the evidence given by Gangubai (PW 1).

However the evidence of Gangubai as a whole needs to

be considered to see the consistency with the FIR. The

main ground that accused wanted to purchase the land of

Kadubai remained there though there is inconsistency in

the particulars in connection with the purchase of the

land.

24) The aforesaid evidence shows that there was

motive for the offence for the husband of the deceased.

Absence of motive is certainly a circumstance which is

relevant for assessing the evidence. However, other

relevant circumstances available under section 3 of

Evidence Act are also proved through witnesses. Other

relevant circumstances can also prove the guilt of the

accused and the absence of motive does not make other

relevant circumstances weak. When the incident is wholly

within knowledge of the accused, he knows what moved

him to commit the crime, due to availability of provision of

section 106 read with section 114 of the Evidence Act, the

absence of motive cannot go to the root of the matter.

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                                           17         Appeal 65 of 2001

25) The provisions of sections 3 and 106 of the

Evidence Act if considered together show that it was

necessary for the accused to give explanation with regard

to the information which he must have regarding the

incident. If the accused gives false information, such

circumstance itself can be used against the accused and

such circumstance becomes additional link of the chain of

circumstances and possible inference needs to be drawn

against the accused due to existence of such

circumstances.

26) In the present matter, Mahadu (PW 4) Police

Patil of the village of the accused has given evidence that

on that day at about 4.00 p.m. accused came to him and

informed that deceased had fallen into his well. He has

given evidence that he had visited the well after receiving

the information but he could not see the dead body and he

gave report to police. Report at Exhibit 16 dated 29-11-

1996 is proved in his evidence and it is consistent with his

oral evidence. On the basis of this report, AD was

registered even when dead body was not visible to the

Police Pail. Thus the information supplied by the accused

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18 Appeal 65 of 2001

was believed by Police Patil and also by police and AD was

registered and inquiry into the accidental death was

started. This circumstance shows that accused only had

the knowledge that the dead body of Sunita was lying in

the well.

27) Evidence of the Police Patil is not disputed in

the statement under section 313 of the Cr.P.C. given by the

accused. He has only answered relevant questions by

saying that he does not know. There is no reason to

disbelieve the Police Patil. By this evidence the

prosecution has established that the accused was in the

company of the deceased on that day, at the relevant time

and he knew that the dead body of the deceased was lying

in the well. This circumstance makes it necessary to use

provision of section 106 read with section 114 of the

Evidence Act against the accused. Due to this

circumstance there was onus on the accused to explain

and make attempt to rebut the circumstance and to create

other probability. The accused gave only false information

which gives additional circumstance against him.

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                                             19            Appeal 65 of 2001

28) There is one more circumstance against

accused, recovery of chappals of the deceased and sliver

rings (tk sM o s) of toes recovered on the basis of statement

given by him under section 27 of Evidence Act. This

circumstance is proved by examining panch witness and

investigating officer. There was no chappal near the well

and incident of assault had taken place at other place

shown by the accused. Pieces of bangles of deceased

were present on that spot. This record is at Exhibits 28

and 29. The evidence of PW 8 Bhausaheb remained

unshattered after extensive cross-examination. He is an

independent witness. This circumstance is proved.

29) Learned counsel for the accused placed

reliance on the case reported as AIR 1957 SC 589 (cited

supra). This case is on evidence of expert under section 45

of the Evidence Act. It is laid down that it is upto the

Court to decide as to whether the opinion needs to be

accepted. There cannot be dispute over this proposition.

The trial Court has accepted the opinion and this Court

sees no reason to interfere in that finding of the trial

Court in view of the aforesaid circumstances.

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                                             20        Appeal 65 of 2001

30) Learned counsel for the accused place reliance

on another case reported as AIR 1981 SC 765 (cited

supra). In this case the Apex Court while discussing the

manner of appreciation of circumstantial evidence has laid

down that the test which requires the exclusion of other

alternative hypothesis is more rigorous than the test of

proof beyond reasonable doubt. This Court is not

disputing that proposition. The cases involving necessity

of use of section 106 of the Evidence Act are of different

kind. Each case involves almost different modus operandi

of the accused and due to that in each case there are

generally different facts. In the present matter evidence

on all relevant circumstances quoted are pointing the

finger only to the accused as guilty person. Thus the

observations made by the Apex Court in this case is of no

help to the accused.

31) On the other hand, the learned Additional

Public Prosecutor has placed reliance on the judgment of

the Bombay High Court in Criminal Appeal No.682/1992

dated 4 July 2012 (The State of Maharashtra v. Laxman

Ganti). Though the facts of this decided case are similar

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21 Appeal 65 of 2001

to the facts of the present case, it is already observed that

each case has different set of facts and there cannot be

ratio as such for drawing inference on a particular fact by

separating it from other facts. This Court holds that the

trial Court has not committed any error in holding the

appellant guilty for the murder of Sunita. Minimum

possible sentence is given by the trial Court. No

interference is possible. In the result, the appeal stands

dismissed. The appellant is to surrender to the bail to

undergo the sentence.

                     Sd/-                              Sd/-
(SUNIL K. KOTWAL, J.) (T.V. NALAWADE, J.)

rsl

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