Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 299 OF 1995
Bhagwat s/o Kewalram Masram,
Aged about 26 years,
Occupation – Labourer,
R/o. Village Mendha (Chapral),
Police Station & Tahsil – Lakhandur,
District – Bhandara. .. Appellant
Accused
.. Versus ..
The State of Maharashtra. .. Respondent
..........
Shri V.J. Gupta, Advocate for the appellant/accused,
Shri C.N. Adgokar, APP for the respondent/State.
..........
CORAM : K.J. ROHEE & S.R. DONGAONKAR, JJ.
DATE OF RESERVING THE JUDGMENT : SEPTEMBER 06, 2007
DATE OF PRONOUNCING THE JUDGMENT : SEPTEMBER 18, 2007
JUDGMENT : (PER : K. J. ROHEE, J.)
::: Downloaded on - 02/06/2024 02:59:10 :::
2
1. The appellant is the original accused who has
challenged this conviction for the offence punishable u/s 302 of
IPC and sentence of imprisonment for life and fine of Rs.100/- in-
default to suffer imprisonment for 3 months by Additional
Sessions Judge, Bhandara in Sessions Trial No.15/1992 decided
on 4.7.1995.
2. The appellant is the resident of village Mendha
(Chapral) Tahsil - Lakhandur, District - Bhandara. He was
residing with his mother and PW 12 Ravi s/o Zittu Madavi (the
son of his maternal aunt). The appellant and PW 12 Ravi were
taking education at Lakhandur. In May-1990, the appellant
married to Shashikala alias Bhavika, the elder daughter of PW 6
Sau. Draupadabai w/o Bajirao Maldongre and PW 9 Bajirao s/o
Madhav Maldongre. PW 6 Sau. Draupadabai was residing at
village Kavalshi, Tahsil - Lakhandur, District – Bhandara and PW 9
Bajirao was serving as a Teacher at village Deutola, District –
Bhandara. After marriage Bhavika went to her matrimonial
house at village Mendha and stayed there for about a month.
Thereafter, she was brought back to her mother's house at
::: Downloaded on - 02/06/2024 02:59:10 :::
3
village Kavalshi. After the month of Kartik, Bhavika went to
village Mendha at her matrimonial house.
3. On 26.11.1990 PW 12 Ravi returned to the house from
school at about 5/6 p.m. He saw a dead body hanging from the
rafter of the roof of the house. He thought it to be a ghost and
rushed out of the house and informed the neighbours. On the
same day, PW 14 Motiram s/o Pusaram Masram (the uncle of the
appellant) prepared a report and through Police Patil took it to
Police Station, Lakhandur. On the basis of the said report A.D.
No.43/1990 u/s 174, Cr.P.C . was recorded on 27.11.1990. On the
same day PSI Madavi (PW 18) visited the place of incident and
prepared spot panchanama (Exh.45). He also prepared inquest
panchanama (Exh.44). On that day PW 6 Draupadabai (mother
of deceased Bhavika) lodged report (Exh.25) at P.S. Lakhandur
alleging therein that the appellant had illicit relations with
another woman, that he ignored his wife Bhavika and that
Bhavika might have committed suicide because of the mental
and physical torture. On the basis of the said report Crime No.
100/1990 u/s 498-A and 306 of IPC was registered against the
appellant at Exh.60. On 28.11.1990 autopsy on the body of
::: Downloaded on - 02/06/2024 02:59:10 :::
4
Bhavika was conducted by PW 7 Dr. G.S. Lanjewar and a Lady
Medical Officer Dr. S.D. Agrawal at Cottage Hospital, Sakoli.
Continuous ligature mark around the neck was noted, so also
contusions and abrasions on other parts of the body were noted.
The Doctor opined that the cause of death was shock due to
strangulation. Accordingly they prepared post-mortem report
(Exh.27). During the course of investigation two post cards dated
1.8.1990 (Exh. 35) and 24.9.1990 (Exh.34) written by the
appellant to his father-in-law PW 9 Bajirao Maldongre were
seized from PW 6 Sau. Draupadabai. On chemical analysis of
viscera no recognisable poison was detected. After completion
of investigation, the appellant was charge-sheeted for the
offences punishable u/s 498-A and 302 of IPC.
4. The defence of the appellant is that on hearing the
rumours of illicit relations between the appellant and Sunanda,
Bhavika committed suicide. In fact, he had cordial relations with
Bhavika.
5. In support of the allegations the prosecution has
examined as many as 18 witnesses. PW 6 Sau. Draupadabai w/o
Bajirao Maldongre is the mother and PW 9 Bajirao s/o Madhav
::: Downloaded on - 02/06/2024 02:59:10 :::
5
Maldongre is the father of deceased Bhavika; PW 8 Sau.
Sulochana w/o Sitaram Masram is the neighbour of PW 6
Draupadabai; PW 10 Yashwant s/o Kodu Maldongre is the uncle
of deceased Bhavika; PW 1 Harishchandra s/o Vithoba Masram
is the cousin and neighbour of the appellant; PW 1
Harishchandra is the husband of Sunita with whom the appellant
had allegedly illicit relations; PW 2 Sau. Dhurpata w/o
Ramchandra Masram, PW 3 Sau. Anusaya w/o Bajirao Sahare, PW
4 Sau. Geetabai w/o Hariram Masram and PW 5 Sau. Tuljabai w/o
Shankar Kumbhare are on the quarrel between Geetabai and
Sunanda prior to the death of Bhavika; PW 12 Ravi s/o Zittu
Madavi is the first witness to have seen the dead body of Bhavika
hanging to the rafter; PW 14 Motiram s/o Pusaram Masram is the
uncle of the appellant who reported about the death of Bhavika
to the Police; PW 16 Tukaram s/o Jairam Kumbhare, resident of
Dahegaon, is a witness who had seen the appellant at village
Dahegaon in the afternoon on the date of the incident; PW 7 Dr.
G.S. Lanjewar is the Medical Officer, Cottage Hospital, Sakoli who
conducted autopsy on the body of Bhavika; PW 11 Motiram s/o
Nago Dighore and PW 13 Ghansham s/o Ravisinha Pawar are the
::: Downloaded on - 02/06/2024 02:59:10 :::
6
panch witnesses; PW 15 Shriram s/o Motiram Nagtode prepared
the map of spot (Exh.50); PW 18 PSI Madavi and PW 17 PSI
Deshpande are the investigating officers.
6. On considering the above evidence, the trial Court held
that the death of Bhavika was homicidal and that the appellant
killed her by strangulation. The trial Court held that the
prosecution failed to prove that the appellant subjected his wife
Bhavika to cruelty. Accordingly the trial Court convicted the
appellant for the offence punishable u/s 302 of IPC and acquitted
him of the offence punishable u/s 498-A and 306 of IPC. The
State has not challenged the acquittal of the appellant. The
conviction of the appellant is under challenge.
7. We have heard Shri V.J. Gupta, Advocate for the
appellant and Shri C.N. Adgokar, APP for the State. We have also
gone through the record and proceedings of the sessions trial
with the assistance of the learned counsel for the parties.
8. The learned counsel for the appellant submitted that
the prosecution has failed to prove that the death of Bhavika was
homicidal. He submitted that there is no direct evidence
connecting the appellant with the death of his wife Bhavika. He
::: Downloaded on - 02/06/2024 02:59:10 :::
7
submitted that the case is entirely based on circumstantial
evidence. The prosecution further failed to prove that there was
motive on the part of the appellant to kill his wife. The
prosecution evidence does not show that there were illicit
relations between the appellant and Sunanda (the wife of PW 1
Harishchandra). In fact, Bhavika committed suicide on hearing
the rumours about the illicit relations between the appellant and
Sunanda. The learned counsel lastly submitted that in fact the
appellant was not at home at the time of the death of Bhavika
and he has been falsely implicated at the instance of the parents
of Bhavika.
9. The learned APP, on the other hand, justified the
impugned judgment. He submitted that there is ample evidence
indicating that there were illicit relations between the appellant
and Sunanda. He further submitted that Bhavika was residing
with the appellant and was thus in his custody. So it was for the
appellant to explain as to how she died. The appellant failed to
explain it and took a plea that he was not at home. The
appellant has, however, not adduced any evidence to establish
his alibi. The learned APP submitted that though there is no
::: Downloaded on - 02/06/2024 02:59:10 :::
8
direct evidence about the involvement of the appellant, the
circumstances established by the prosecution unerringly point to
the guilt of the appellant. He submitted that the prosecution has
proved the guilt of the appellant beyond doubt. The trial court
was justified in convicting the appellant and that no interference
is called for.
10. We have carefully considered the rival contentions of
the learned counsel. The first thing to be considered is whether
Bhavika met with homicidal death as alleged by the prosecution
or whether it was suicidal death as contended by the appellant.
11. The fact of death of Bhavika came to light in the
evening of 26.11.1990. On the same day PW 14 Motiram
Pusaram Masram (the uncle of the appellant) prepared report
(Exh.47) and it was taken to P.S. Lakhandur on the next day i.e.
on 27.11.1990 at 7 a.m. On the basis of the said report, A.D.
No. 43/90 under Section 174 of Cr. P. C. was registered at Exh.
48. On the very day PW 18 PSI Madavi visited the place of
incident and prepared spot panchanama (Exh.45) between 7.30
and 8.15 a.m.
12. The spot panchanama (Exh.45) shows that the place of
::: Downloaded on - 02/06/2024 02:59:10 :::
9
incident is the residential house of the appellant. There is a 5 ft.
high wall dividing the front room and the kitchen. There is a loft
to the room. There are rafters to the ceiling. The height of the
rafters from floor is 8 ft. 5 inches. The toes of the deceased
were tilted towards the floor. The noose of the rope was below
the right ear of the deceased. The neck of the deceased was
slightly tilted towards the left side. Blood had oozed out the
nose of the deceased. Froth had come out of the mouth on the
left side cheek of the deceased. The pieces of bangles of the
deceased were lying on the spot.
13. Inquest panchanama (Exh.44) was prepared between
8.30 and 9.30 a.m. Injuries on head and face of the deceased
were noted. Both the lips were open, the tongue was caught
between the jaws and was protruding out from the teeth.
Abrasion marks were visible on the neck of the deceased.
Abrasions were noted on both the knees and blood had oozed
from those injuries. There was no injury on the private parts of
the deceased.
14. On 28.11.1990 PW7 Dr. Lanjewar conducted autopsy.
He prepared post mortem report (Exh.27) and noted that the
::: Downloaded on - 02/06/2024 02:59:10 :::
10
face was congested and swollen, there was blackening of right
eyelid, tongue was protuding out and was bitten between teeth,
tip dark in colour, blood coming out from nostrils was dark in
colour, blood stips were present on left cheek and chin, dry blood
was present over feet and toe; dry mud was also present on feet
and ash was present on toes of both feet. Dr. Lanjewar noted
surface wounds and injuries as under:-
“i) Contimes ligature mark 11 ½” X ½”
around the neck, more marked in front of thyroid
and on lt. Side,- knot present on Rt. Side below
momdible dark red in colour, -transvears in
direction- small abrasion near the margins of
ligature mark ++
ii) contusion 3” X ½” on lt. Side of forehead
half curved, bluish in colour,
iii) Blackening of the Rt. Upper eyelid with
swelling,
iv) Abrasion 1 ¼” x ½” on the anterior
aspect of both axillary line (Ant- bite),
v) Abrasion ¾” X ½” on the anterior aspect
on left knee,
vi) Small abrasion on both knee +
vii) Swelling over right temporal region +
size 4” X 3”.”
No other injuries were discovered by external examination or
::: Downloaded on - 02/06/2024 02:59:10 :::
11
palpation as fractures etc. Injury no. (iv) and other ant-mark on
abdomen and chest were post mortem injuries. There was
extravesation of blood in right parietal and temporal region and
muscle tissue was highly congested. Walls, ribs and cartilages
were intact; pleura was pale and larynx, trachea and bronchi
contained dark blood; Extravesation of blood in the tissue under
ligature mark was present; Both lungs were pale; Accumulation
of blood in pelvic cavity about 102 contains dark blood; Tongue
tip was dark; Liver, gall bladder, pancreas and suprarenals ,
spleen and kidneys were pale; Spine and spinal cord was not
examined. In the opinion of the Dr. Lanjewar the cause of death
was shock due to vaso-vagal effect due to strangulation.
15. The Chemical Analyser's report (Exh.28) shows that no
recognisable poison was detected in the viscera.
16. Dr. Lanjewar deposed that since ligature marks were
transversed , there was possibility of homicidal strangulation
rather than suicidal strangulation. During cross-examination Dr.
Lanjewar stated that in the rarest of rare case in spite of the
transverse ligature mark, the death can be by hanging. Dr.
Lanjewar further stated that abrasions are possible due to fall
::: Downloaded on - 02/06/2024 02:59:10 :::
12
and the injuries are possible if the victim had tried to climb a wall
to reach the roof of the house in order to tie the rope in an
attempt to commit suicide.
17. It has been observed in Modi's Medical Jurisprudece
(Twenty Second Edition) at page 257 that in India it is common
practice to kill a victim and then to suspend the body from a tree
or a rafter to avert suspicion. It is, therefore, necessary to find
out if hanging was the cause of death in a suspended body. The
presence of a ligature mark alone is not diagnostic of death from
hanging
18. Strangulation is a violent form of death, which results
from constricting the neck by means of a ligature or by any
other means without suspending the body. Death is usually due
to asphyxia. Very rarely, the cervical vertebrae may be
fractured. In Modi's Medical Jurisprudence it is further observed
that a suicidal strangulation is not very common. Homicidal
strangulation is common. At page 270 in Modi's Medical
Jurisprudence (Twenty-Second Edition) the difference between
hanging and strangulation is given in tabular form. In order to
examine the correctness of the opinion of Dr. Lanjewar, it would
::: Downloaded on - 02/06/2024 02:59:10 :::
13
be beneficial to refer to some items in tabulated form:-
Hanging Strangulation
2 Face – Usually pale and
2 Face- Congested, livid and
petechiae rare.
marked with petechiae.
4 Neck- Stretched and elongated
4 Neck – Not so.
in fresh bodies.
5 External signs of asphyxia,
5 External signs of asphyxia,
usually not well marked
very well marked (minimal if
death due to vasovagal and
carotio sinus effect).
6 Bleeding from the nose, mouth
6 Bleeding from the nose,
and ears very rare.
mouth and ears may be found.
7 Ligature mark – Oblique, non-
7 Ligature mark – Horizontal or
continuous placed high up in
the neck between the chin and
the larynx, the base of the
groove on furrow being hard,
yellow and parchment-like.
transverse continuous, round
the neck, low down in the
neck below the thyroid, the
base of the groove or furrow
being soft and reddish.
8 Abrasions and ecchymoses
8 Abrasions and ecchymoses
round about the edges of the
ligature mark, rare.
round about the edges of the
ligature mark, common
10 Injury to the muscles of the
10 Injury to the muscles of the
neck- Rare
neck- Common
13 Fracture- dislocation of the
13 Fracture- dislocation of the
cervical vertebrae- Common in
judicial hanging
cervical vertebrae – Rare
14 Scratches, abrasions and
14 Scratches, abrasions fingernail
bruises on the face, neck and
other parts of the body-
Usually not present
marks and bruises on the face
neck and other parts of the
body- Usually present.
19. If we compare the observations in the post mortem
report (Exh.27) with the above items, it would be seen that the
death in the present case is by strangulation and not by
::: Downloaded on - 02/06/2024 02:59:10 :::
14
hanging.
20. Besides medical evidence, the trial Court has also
considered certain surrounding circumstances suggesting that it
was not a case of hanging but of strangulation.
21. The trial court observed that there was a cot resting on
the wall just near the dead body. However, it was not used for
climbing the partition wall to approach the rafter or even as a
support after hanging. The trial Court observed that no stool or
box was used for support to feet before hanging and the door of
the one room tenement was not latched from inside. The
evidence of PW 12 Ravi does not show that when he returned to
the house in the evening after attending school, the door was
closed from inside. This shows that the door was not closed from
inside. If it was a case of suicidal hanging by Bhavika, she would
have taken precaution to close the latch of the door of the room
from inside. One or two other circumstances are also noted by
the trial Court, but they do not appear to be so important. In our
opinion the trial Court has elaborately considered the medical as
well as other aspects of the case in coming to the conclusion that
it was a homicidal strangulation and not suicidal hanging.
::: Downloaded on - 02/06/2024 02:59:10 :::
15
Noticing of broken pieces of bangles on spot also rule out
possibility of hanging. We do not find any reason to disagree
with the findings of the trial Court.
22. Now the question is who killed Bhavika. It may be noted
that there is no eye-witness to the incident. Hence we have to
consider the circumstances.
23. It has come in evidence that after the month of Kartik,
Bhavika returned from her parental house to the matrimonial
house at village Mendha. She was killed on 26.11.1990. During
this period, she was staying with her mother-in-law, husband
(namely the appellant) and PW 12 Ravi (the cousin of the
appellant). The mother of the appellant must be quite old at the
time of incident. Hence it appears improbable that she would
have strangulated Bhavika who was quite young. The incident is
of the year 1990 whereas PW 12 Ravi was examined in the year
th
1995. At that time he was studying in 6 Standard and his age
was 16 years. It means that at the time of incident PW 12 Ravi
might be hardly 11 years old. So, it is equally improbable that
PW 12 Ravi strangulated Bhavika. Secondly there is nothing on
record to show that the mother-in-law of Bhavika or PW 12 Ravi
::: Downloaded on - 02/06/2024 02:59:10 :::
16
had any motive to kill Bhavika. Thus the possibility of the
mother-in-law of Bhavika or PW 12 Ravi having killed Bhavika by
strangulation has to be ruled out.
24. The last occupant of the house is the appellant. He
being the husband of Bhavika and residing under the same roof
with her is expected to explain as to how she died. His defence
is that on hearing the rumours about illicit relations between him
and Sunanda, Bhavika committed suicide. As held earlier
Bhavika did not commit suicide, but she was done to death by
strangulation. In view of these circumstances there can be
nobody else than the appellant who is responsible for causing
the death of his wife Bhavika by strangulation.
25. In this respect it may also be noted that on the date of
incident PW 16 Tukaram r/o Dahegaon saw the appellant coming
on bicycle by Lakhandur-road between 3-4 p.m. On seeing the
appellant PW Tukaram asked him as to whether he was coming
from his own village. The appellant, however, did not respond
and went towards the house of his maternal aunt. PW
Tukaram specifically stated that the appellant was not seen at
village Dahegaon either till that time i.e. on Monday or on the
::: Downloaded on - 02/06/2024 02:59:10 :::
17
previous day i.e on Sunday. PW Tukaram denied that the
appellant had visited his aunt's house on Sunday in the
afternoon. During cross examination PW Tukaram admitted that
Bajirao (father of deceased Bhavika) is his relative. However, he
denied that on the say of Bajirao he was deposing false. It
appears that the statement of PW 16 Tukaram was recorded by
PW 17 PSI Deshpande after about 7 months. It is true that there
has been delay in recording his statement. However, PW
Tukaram stated during cross examination that he did not go to
the police himself to narrate that he had seen the appellant on
the date of the incident at village Dahegaon in the afternoon. It
may be noted that during cross examination PSI Deshpande was
asked as to whether he had recorded the statement of PW
Tukaram to which he answered in the affirmative, but no
explanation was sought from him about the delay in recording
his statement. In the circumstances of the case the delay cannot
be said to be inordinate so as to discard the testimony of PW
Tukaram. The trial court has relied on the testimony of PW
Tukaram and we see no reason to disagree with the trial Court.
26. It is thus obvious that the appellant must have been at
::: Downloaded on - 02/06/2024 02:59:10 :::
18
his house in the morning on the date of incident. In this respect
the trial court observed that there was motive for the appellant
to finish his wife Bhavika. It might be because she should not
make query about his relations with Sunanda or it also might be
possible that the presence of Bhavika was an hindrance in
continuing his relationship with Sunanda. Thus there appears
involvement of the appellant in the death of Bhavika by
strangulation.
27. There cannot anybody else than the appellant who was
interested in killing Bhavika because Bhavika had no enmity with
anyone at village Mendha. Even she was not acquainted with
the villagers because her stay was very brief. These
circumstances clearly indicate the involvement of the accused
and accused alone in the death of Bhavika. The trial Court
rightly observed that the circumstances of the case are totally
inconsistent with the innocence of the appellant. We see no
reason to disagree with the conclusion.
28. The trial Court has properly appreciated the evidence on
record and arrived at correct finding of the guilt of the appellant.
::: Downloaded on - 02/06/2024 02:59:10 :::
19
We confirm the same and pass the following order :
The appeal is dismissed. The bail bonds of the appellant
are cancelled. He is directed to surrender within four weeks to
serve out the sentence.
JUDGE JUDGE
....................
::: Downloaded on - 02/06/2024 02:59:10 :::