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 200117) 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 2001that 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 2001like 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 200123) 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 200125) 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 2001was 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 200128) 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 200130) 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 2001to 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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