Bombay High Court H vs The State Of Maharashtra on 21 February, 2014Bench: S.S. Shinde, V.M. Deshpande

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPEAL NO. 600 OF 2011 C

Dipchand s/o Himmatrao Pawar,

age 47 years,

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occ. Ex-serviceman,

R/o Loni Sim, Tq. Parola,

District Jalgaonig …Appellant (Orig.Accused)

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VERSUS

The State of Maharashtra …Respondent y

…..

Shri R.M.Deshmukh, advocate (appointed) for appellant ba

Smt. S.A.Dhumal, A.P.P. for respondent/State …..

CORAM : S.S.SHINDE

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AND

V.M.DESHPANDE, JJ.

DATE OF RESERVING

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THE JUDGMENT : 10.02.2014 DATE OF PRONOUNCEMENT

OF THE JUDGMENT : 21.02.2014 JUDGMENT : [Per V.M.Deshpande, J.] 1] The appellant, who was found guilty of committing uxoricide ::: Downloaded on – 01/03/2014 00:13:26 ::: 2 cra600.11 rt

by the Additional Sessions Judge, Amalner by judgment and order, dated 16.3.2011, in Sessions Case No. 48 of 2010 and was sentenced ou

to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months, has C

approached this court, thereby challenging the correctness of the said judgment.

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2]

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The factual matrix, as unfolded during the course of the prosecution case, can conveniently be stated as under :- H

Dipchand, the appellant and his wife Kalpanabai were having marital life for last 26 years. The couple is having two sons and one y

daughter. PW1 Rakesh is younger than PW3 Sachin and Pavitra is ba

the daughter of the couple.

The appellant is a retired army person. After retirement from the om

army, he was working as Watchman at Devas in Madhya Pradesh. It appears that amongst the eight brothers of the appellant, there took partition in respect of their ancestral properties and the agricultural B

field bearing Gat No. 45, situated at village Loni Sim, Taluka Parola, District Jalgaon came to his share in the said partition. It is an admitted position that the appellant is having his bank account with the State Bank of India, Parola Branch, Parola. It is also an undisputed position that the appellant was addicted to liquor. ::: Downloaded on – 01/03/2014 00:13:26 ::: 3 cra600.11 rt

3] The prosecution case further proceeds that, at the relevant time, the elder brother PW3 Sachin was taking education at Nashik. ou

On 12.8.2010, the appellant and his wife Kalpanabai (deceased) proceeded towards their field in the morning at 9.00 a.m. on the motor C

cycle. Before proceeding, they asked PW1 Rakesh that he should bring the tifin at 12.00 noon in the field. h

It appears that, by passage of time, on that day Pavitra prepared ig

tifin for lunch and PW1 Rakesh had been to the field as directed by his parents. To his surprise, he could not notice both of them in the H

agricultural field. The motor cycle was also not there. He found chappals of his mother and sickle near the well situated in the field. y

He made inquiries about them with the persons working in the ba

surrounding fields, however, he could not get any information about his parents. PW1 Rakesh returned to his village and intimated the fact of om

missing of his parents to everybody. Upon that, villagers came to the agricultural field. They tried to find out his parents. Someone also put hook in the well, but that attempt was unsuccessful. Thereafter, he B

gave a phone call to his brother PW3 Sachin. He also lodged a report about missing of his parents with Parola police station on 12.8.2010. The said report is at Exh.11. The entry of the said report was taken in the station diary vide entry no. 52 at 23.30 hours and it was registered as missing complaint no.11 of 2010. ::: Downloaded on – 01/03/2014 00:13:26 ::: 4 cra600.11 rt

4] On the next day i.e. on 13.8.2010 in the morning PW1 Rakesh, PW3 Sachin and others drew the water from the well with the ou

help of electric motor which was fitted on the well. To their unfortune, they saw dead body of Kalpanabai in one corner of the well. The said C

fact was immediately reported to the police and on the basis of the complaint of PW1 Rakesh on 13.8.2010 First Information Report was h

registered against the appellant. In the First Information Report, the ig

informant Rakesh, son of the appellant and the deceased, specifically raised suspicion over his father, since according to him, his father H

Dipchand always used to raise suspicion over the character of his mother. An offence punishable under Section 302 of the Indian Penal y

Code vide Crime No. 225 of 2010 was registered against the appellant. ba

5] The investigation was handed over to PW10 A.P.I. Khillare. om

Even PW10 Khillare investigated A.D. report. In that investigation, he visited the spot of the incident. He found that the dead body of Kalpanabai was lying in the well. The dead body was fished out and B

inquest panchanama (Exh.14) was prepared. The spot panchanama (Exh.15) was also drawn. The dead body was sent for postmortem. He also recorded the statements of the witnesses. On 21.8.2010, he received report of the postmortem examination. He forwarded the query to the Medical Officer, Parola inquiring as to what weapon or thing can cause injury appearing on the occipital region of the ::: Downloaded on – 01/03/2014 00:13:26 ::: 5 cra600.11 rt

deceased. He secured the opinion of the doctor. After completion of investigation, charge sheet was filed before the Judicial Magistrate, ou

First Class, Parola.

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6] During trial, the prosecution has examined ten witnesses. The statement of appellant under Section 313 of the Code of Criminal h

Procedure was also recorded. He also gave his written statement, ig

which is at Exh.42. He also examined Kashinath Himmatrao Patil as defence witness. After full fledged trial, the learned Additional H

Sessions Judge, Amalner on 16.3.2011 was pleased to convict the appellant for the offence punishable under Section 302 of the Indian y

Penal Code, though he was acquitted for the offence punishable under ba

Section 498A of the Indian Penal Code. om

7] We have heard Shri R.M.Deshmukh, learned advocate who was appointed to represent the cause of the appellant by Legal Aid Committee. We have also heard Smt. S.A.Dhumal, learned A.P.P. B

appearing on behalf of the respondent/State. With their able assistance, in order to reappreciate the entire evidence as appearing in the record, we have very minutely and carefully examined the same. 8] It is clear that, in the present case, there are no witnesses to the actual occurrence of the incident. In short, the entire case is ::: Downloaded on – 01/03/2014 00:13:26 ::: 6 cra600.11 rt

based upon circumstantial evidence. ou

9] In the case of Dhananjaya Reddy vs State of Karnataka [AIR 2001 SC 1512] , as rightly pointed out by the C

learned counsel for the appellant, following is the principle to deal with the case based on circumstantial evidence. h

“39. In a case based upon circumstantial evidence, the prosecution is under a legal obligation to ig

prove, firstly on facts the existence of such circumstances and secondly that the circumstances form a complete chain which lead to the irresistible H

conclusion that the accused are guilty and such circumstances are inconsistent with their innocence. On proof of the aforesaid conditions, the Court can convict the accused of the charges framed against them. It is rightly said that witnesses may lie but the y

circumstances cannot. “

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10] Now, let us examine the evidence appearing in the present case. Admittedly, after retirement from army, the appellant was om

residing at Pritampur, which is adjacent to Devas in Madhya Pradesh. The distance between Devas and Pritampur is just 4 to 5 kms. and at the relevant time the appellant was working as watchman in a factory, B

situated at Devas.

Some time in between 2009 and 2010 the appellant along with his wife shifted to Loni Sim, Taluka Parola, where the appellant was having the agricultural field bearing Gat No.45, which he got in the family partition.

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It is also established fact that in the said agricultural field there ou

was a big well having 15 feet circumference for irrigation of the land. The said well is 40 feet in depth and was having water to the extent of C

15 feet. An electric motor is fitted on the same, obviously for the purposes of irrigating the agricultural field. h

The said well appears to be unconstructed one. From the ig

evidence of PW1 Rakesh, onions and cotton were sown in the field. From the evidence of PW1 Rakesh, whose age is 19 years, it appears H

that on 12.8.2010 the appellant along with his mother deceased Kalpanabai left for the agricultural field on motor cycle. This fact is y

admitted by the appellant in his statement recorded under Section 313 ba

of the Code of Criminal Procedure. According to PW1 Rakesh, before leaving to the agricultural field at 9 O’ clock in the morning the om

appellant asked this witness to reach their tifin box in the agricultural field at 12 O’ clock in the noon. This part of the evidence is most natural one. Accordingly, when PW1 Rakesh reached to the B

agricultural field, neither he could locate his parents, nor he could see the motor cycle. The reaction on the part of PW1 Rakesh firstly to disclose this fact to the villagers and then to file missing report of his parents with the police authorities is most natural. Subsequently, as observed in the preceding paragraph, after the dead body of Kalpanabai was found, the First Information Report was lodged. ::: Downloaded on – 01/03/2014 00:13:26 ::: 8 cra600.11 rt

In view of the fact that dead body of Kalpanabai was found in the ou

well, her death is unnatural. Now, since the death is unnatural, question is whether it is suicidal, accidental or homicidal one. C

11] Prosecution has examined Dr. Pramod Chandwade (PW5). h

He was posted at Parola cottage hospital as Medical Officer. On ig

13.8.2010, he received dead body of Kalpanabai along with inquest panchanama. Police requested him to perform postmortem H

examination on the dead body to ascertain the exact cause of death of Kalpanabai, as there was injury on her head and the dead body was y

found in the water.

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PW5 Dr. Pramod Chandwade performed autopsy on the dead body of Kalpanabai and in the postmortem examination, he found om

following injury on the person of Kalpanabai. ” C.L.W. on occipital region of the head. It was 8 cm. X 4 cm. And it was bone deep.” The doctor found that the skull bone underneath the injury was B

fractured. The edges of the wound were irregular. He also found that the fracture was with depression and brain substance was lacerated, and therefore, there was internal sub arachnoid haematoma + +.

Apart from the afore said injury, Dr. Chandwade noted in his ::: Downloaded on – 01/03/2014 00:13:26 ::: 9 cra600.11 rt

postmortem notes that he did not find any watery substance in her lungs. He found her stomach empty. The postmortem report is at ou

Exh.27 on the record.

According to Dr. Chandwade, since he could not find any watery C

substance in the lungs, that indicates that the person has died before falling in the water. In that view of the matter, the doctor has given the h

cause of death of Kalpanabai as, “death due to head injury and then fall in water”.

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The age of the deceased, it appears from the postmortem H

report, was 42 years. She was having three issues. Her marital life was about 26 years. There is nothing available on record which would y

suggest that the deceased was fed up with her life, and therefore, ba

jumped herself into the well and committed suicide. In that view of the matter, the possibility of death due to suicide is completely ruled out. om

12] Now, it remains as to whether it was accidental death or homicidal death. The court is required to embark upon this point in B

view of the specific defence and stand taken by the appellant. According to the defence, as appearing in the written statement made by the appellant under Section 313 of the Code of Criminal Procedure, after proceeding on motor cycle with his wife from house, ::: Downloaded on – 01/03/2014 00:13:26 ::: 10 cra600.11 rt

they came to the square. Thereafter, deceased alighted from motor cycle and proceeded towards the agricultural field and the appellant ou

proceeded towards the State Bank of India, Parola Branch for withdrawing Rs.50,000/- in order to hand over the said amount to C

Kashinath Himmatrao Patil (defence witness) at Devas. According to that statement, there is possibility of the deceased falling in the well by h

accident and due to the stones of the well there is possibility of getting injury on her head.

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13] Now, let us scrutinize as to whether the death is accidental one as suggested by the appellant. The deceased was the wife of an y

agriculturist. In fact, she proceeded along with the appellant to the ba

agricultural field, obviously for performing agricultural operations. The spot panchanama (Exh.15) clearly reveals that for the purposes of om

irrigation there existed water pump on the well. The spot panchanama reveals as under :-

” ििहीरीचया पिििमेस एक इले.पोल असून पोलिर खाली सटारटर लािलेली लोखड ं ी पेटी

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आहे.

The map of the spot of the incident is appearing below the spot panchanama, which clearly shows that the said electric pole, if not situated far away, is definitely situated away from the well and it appears, for operating the motor pump the person is not required to come very close to the said well. ::: Downloaded on – 01/03/2014 00:13:26 ::: 11 cra600.11 rt

Thus, it is very clear from the afore said situation, as found on ou

the spot, Kalpanabai was not required to be very near to the well, if she was intending to start electric motor for the purposes of irrigation. C

Therefore, the possibility of Kalpanabai falling down accidentally in the well at the time of operating the electric motor is completely ruled out. h

14]

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Now, it is argued on behalf of the appellant that it was possible for Kalpanabai to fetch water for drinking purposes and for H

that purpose she was required to come closely to the well which is unconstructed one and while fetching water, Kalpanabai accidentally y

slipping in the well is possible. ba

However, from the facts appearing on the spot of occurrence, as observed by panchas, the possibility of Kalpanabai accidentally om

slipping in the well is not only remote, but is impossible one. 15] Now, to test the said argument, from the spot panchanama, B

it is clear that one plastic bucket along with other articles were found outside the well. If really Kalpanabai went there near the well to fetch the water for drinking purposes, she will first put the plastic bucket inside the well and in case of her accidentally slipping in the well, the said plastic bucket ought to have found inside the well. However, existence of the plastic bucket outside the well clearly shows and ::: Downloaded on – 01/03/2014 00:13:26 ::: 12 cra600.11 rt

suggests that at no point of time Kalpanabai must have gone near the well to fetch the water.

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In addition to that, since there was an electric pump, she could have started the same and for that purpose she was not required to go C

near the well. Therefore, the possibility of slipping Kalpanabai inside the well accidentally, as suggested by the defence, is clearly ruled out. h

16]

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Since no water was found in the lungs of deceased and as per the opinion of the doctor, Kalpanabai died before falling in the H

water, the defence through cross-examination of PW5 Dr. Pramod Chandwade tries to bring on record as follows :- y

“…. I know the term “”vagal shock”. It is correct that in a vagal shock person dies instantly. It is ba

correct that if something happens instantly unexpectedly the person gets shock and dies, such a death is called vagal shock death. It is correct that in the event of person suddenly touches the water om

he may receive vagal shock and may die. It is possible that person may get shock by suddenly falling in water or jumping in water and die immediately by vagal shock and in that event water may not be found in his lung or respiratory track or stomach. “

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Even the learned author Modi also found that vagal inhibition causes sudden cardiac arrest from fright or terror, or it may be caused during a sudden and unexpected fall in the water. ::: Downloaded on – 01/03/2014 00:13:26 ::: 13 cra600.11 rt

17] Thus, from the afore said cross-examination, in order to receive vagal shock, what is important is that the person receiving ou

vagal shock must touch the water suddenly or fall in the water suddenly.

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As observed in the preceding paragraphs, since death of Kalpanabai is not an accidental one, it is but natural that she will not h

receive vagal shock. Therefore, the argument of the learned counsel ig

appearing for the appellant, on the basis of cross-examination appearing in the deposition of PW5 Dr. Pramod Chandwade, has to H

be rejected.

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18] Now, once the possibility of suicidal or accidental death is ba

completely ruled out and since the death is unnatural, an irresistible conclusion that can be drawn is that the death of Kalpanabai is om

homicidal one.

Now, it is to be seen whether the appellant is responsible for causing the said homicidal death. B

19] The most important incriminating circumstance appearing in the prosecution case against the appellant is that deceased Kalpanabai was last seen together in the company of the appellant. In fact, the admission on the part of the appellant to that effect in his statement under Section 313 of the Code of Criminal Procedure, in ::: Downloaded on – 01/03/2014 00:13:26 ::: 14 cra600.11 rt

addition to the consistent evidence of PW1 Rakesh, who is son of the couple, clearly establishes the said fact. ou

According to the prosecution, the fact that the couple left the house to proceed to agricultural field is firmly established. Now, there C

is no challenge to the version of PW1 Rakesh about the fact that at the time of leaving house he was asked to reach the tifin box at 12 O’ h

clock in the noon in the agricultural field. The said fact clearly and ig

clinchingly rules out any other possibility as suggested by the appellant in his statement under Section 313 of the Code of Criminal H

Procedure. Had there been any intention on the part of the appellant to proceed to Devas, as tried to be established by him through his y

statement under Section 313 of the Code of Criminal Procedure and ba

by examination of defence witness, certainly he would not have directed his son to bring his tifin at 12 O’ clock in the agricultural field. om

Further, PW1 Rakesh is a matured son, who has attained the majority and therefore, it is indigestible that the appellant will not disclose PW1 Rakesh, his intention of proceeding to Devas. B

20] Further there is no evidence available on record that Kalpanabai alighted from motor cycle at chowk and proceeded alone towards the agricultural field. Further, according to the defence, on the said day, the appellant withdrew Rs.50,000/- from the Bank. The said fact could have been very easily established on record either by ::: Downloaded on – 01/03/2014 00:13:26 ::: 15 cra600.11 rt

producing the passbook or by examining the person from the Bank. No doubt it is true, in cross-examination PW1 Rakesh admitted that the ou

passbook was handed over to him by his father. Assuming that the passbook was with PW1 Rakesh, in order to prove his specific C

defence, it was obligatory on the part of the appellant to place extract of the pass book on record, which could be easily available from the h

Bank. In absence of anything on record, it is really unbelievable that ig

the appellant has withdrawn Rs.50,000/- from the Bank on 12.8.2010. H

21] Incidentally, according to the defence, the appellant was required to withdraw the said amount of Rs.50,000/- from the bank in y

order to repay the hand loan which he had taken, even as per his ba

version, from one Yashpal Rathod, who was the neighbour of DW1 Kashinath Patil, who is the elder brother of the appellant. This om

Kashinath Patil resides at 7 MIG Super Trilok Nagar, Ujjain Road, Devas (Madhya Pradesh). According to this witness, the appellant has taken hand loan of Rs.50,000/- from Yashpal Rathod and in that B

transaction this defence witness was surety. This Yashpal Rathod was demanding sum of Rs.50,000/- from him and in turn he demanded Rs.50,000/- from the appellant and for that purpose the appellant had been to Dewas to repay Rs.50,000/-. ::: Downloaded on – 01/03/2014 00:13:26 ::: 16 cra600.11 rt

22] There is nothing on record to show that really the appellant was owing Rs.50,000/- to Yashpal Rathod. If really he was owing Rs. ou

50,000/- to Yashpal Rathod, the evidence of Yashpal Rathod would have been primary in that behalf. In absence of evidence of Yashpal C

Rathod to prove the factum of hand loan, the only conclusion that can be drawn is that the appellant has brought a concocted story through h

his brother on record.

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23] Now, it is established on record that the appellant was H

habituated to drinking. In fact, his brother-the defence witness, has also admitted the said fact. Thus, the assertion on the part of PW1 y

Rakesh about the habit of the appellant of drinking liquor is got ba

corroborated. Further, two fully grown up sons of the appellant are consistent in their version that the appellant used to raise suspicion om

over the character of deceased and on that count she used to be assaulted by the appellant. There was no reason for his two sons to depose against their father on that count. A feeble attempt is made to B

impeach their version in cross-examination by giving suggestion that they are stating at the behest of their maternal uncle. It is also tried to establish that the summons of the case were served upon them at Janve, which is the village of maternal uncle and thereby it was tried to be suggested that these two sons are under the influence of their maternal uncle.

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Firstly, after the death of their mother and after their father being lodged in jail, their residing with the maternal uncle is most natural. ou

Further, no circumstance even by suggestion is brought on record that there was any conflict of appellant with Bhaskarrao Kashinath Patil, C

the brother-in-law of the appellant. What is suggested to PW1 Rakesh and PW3 Sachin in cross-examination is that the appellant will waste h

his landed property in his drinking habit. The suggestion given to PW1 ig

Rakesh that his maternal uncle was intervening in the family matter is firmly denied.

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24] Therefore, when it is conclusively proved that the deceased y

was lastly seen in the company of the appellant and when it is found ba

that the version of the appellant is nothing but a falsehood that Kalpanabai parted her company, it is only the appellant who can be om

held responsible for causing the injury appearing on her person. 25] In view of the afore said reasoning, we are of the firm view B

that the learned Trial Court has rightly concluded that the prosecution has succeeded in bringing home the guilt against the appellant. In fact, on the reappreciation of the evidence on record, we affirm the finding of the guilt recorded by the learned Judge of the Trial Court, and accordingly, we find the present appeal filed by the appellant meritless. The appeal, therefore, deserves to be dismissed by ::: Downloaded on – 01/03/2014 00:13:26 ::: 18 cra600.11 rt

confirming the judgment and order of conviction of the appellant, passed by the learned Additional Sessions Judge, Amalner on ou

16.3.2011.

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26] Before parting with this judgment, we must record our appreciation for Shri R.M.Deshmukh, advocate who was appointed by h

the Legal Aid Committee to espouse the cause of the appellant. ig

Though, he was an appointed lawyer, he filed private paper book on record. We appreciate his gesture. We, accordingly, quantify his fees, H

including the expenses which he must have incurred for preparation of private paper book, at Rs.10,000/-. y

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27] Appeal dismissed. om

(V.M.DESHPANDE, J.) (S.S.SHINDE, J.) // Authenticated copy //

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D.B.Mahajan,

Private Secretary to Hon’ble Judge. ::: Downloaded on – 01/03/2014 00:13:26 :::