Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD BENCH BENCH AT AURANGABAD AT AURANGABAD
CRIMINAL APPEAL NO. 155 OF 2006 CRIMINAL CRIMINAL APPEAL NO. 155 OF 2006 APPEAL NO. 155 OF 2006
Navnath s/o Dattatraya Waghmare,
age 28 years, occ. labour,
r/o Diksal, Taluka Karjat,
District Ahmednagar ...Appellant
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Ashti,
Taluka Ashti, District Beed. ...Respondent
.....
Mr.C.V.Thombre, advocate for the appellant
Mrs.R.D.Reddy, A.P.P. for the respondent
.....
CORAM : NARESH H.PATIL CORAM CORAM : NARESH H.PATIL : NARESH H.PATIL
AND AND AND
P.R.BORKAR, JJ. P.R.BORKAR, P.R.BORKAR, JJ. JJ.
DATED : 14.1.2008 DATED DATED : 14.1.2008 : 14.1.2008
ORAL JUDGMENT : (Per P.R.Borkar, J.) ORAL ORAL JUDGMENT : (Per P.R.Borkar, J.) JUDGMENT : (Per P.R.Borkar, J.)
1. The appellant is convicted by the learned
Sessions Judge, Beed, on 5.1.2006 in Sessions Case No.
7 of 2005, for committing murder of his wife Manjubai
and thus committing offence punishable under Section 302
of the Indian Penal Code and sentenced to suffer
imprisonment for life by his judgment and order.
2. Briefly stated, deceased Manjubai was wife of
present appellant. They married 15-16 years before the
incident on 2.10.2004. They were blessed with two sons
and a daughter. Still the appellant was suspecting
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character of Manjubai and harass her. As a result,
Manjubai used to leave the house and go to the house of
her sister Tarabai (pw3) or to her brother’s house.
Accused used to go and bring her back and again they
used to live together. This happened many times.
3. Fifteen days before 2.10.2004 Manjubai had come
to the house of Tarabai (pw3) after she was beaten by
accused-appellant due to suspicion on her character and
was living with Tarabai (pw3) at Hingni, Taluka Ashti,
District Beed. The appellant is resident of village
Diksal, Taluka Karjat, District Ahmednagar. On
1.10.2004 the appellant went to bring back his wife.
Tarabai (pw3) and deceased Manjubai had gone in the land
of Tarabai. They returned at about 6.00 p.m. On that
day, the husband of Tarabai (pw3) Popat Pawal had gone
to the brother of Tarabai for some reason and he had not
returned back due to heavy rains. Bapu (pw6) son of
Tarabai was at the house when the appellant came.
Tarabai (pw3), Bapu (pw6), the appellant and deceased
Manjubai took dinner and Manjubai and Tarabai went to
sleep in a room described as "Malwad". Tarabai (pw3)
and Bapu (pw6) slept in kitchen. At about 4.00 a.m.
there was sound of opening door and Tarabai (pw3) saw
the appellant going out. She thought that he might be
going for answering nature’s call and went to sleep. At
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6.00 a.m. Tarabai (pw3) got up and was doing her daily
chores. Tarabai (pw3) asked Bapu (pw6) to wake up
Manjubai and the appellant, but he did not go. At about
6.30 a.m. Tarabai (pw3) went to knock the door of
"Malwad", but the door got opened and she saw Manjubai
lying in a pool of blood. Manjubai was dead. An iron
pestle was lying nearby. The appellant was not there.
So, Tarabai (pw3) raised shouts. Bapu (pw6), neighbour,
Ambadas Gavane (pw5) and others came. The matter was
informed to Pandurang Zambare (pw8) who was police patil
of village Hingni. Pandurang (pw8) went and informed
the incident to police. Head constable Madhukar Shinde
(pw9) came, drew inquest and spot panchanama, sent dead
body for autopsy, recorded complaint of Tarabai (pw3)
and then registered the offence. Further investigation
was carried by Balasaheb Salve (pw11) and Krishna
Bandapatte (pw12).
4. The accused was absconding since the happening of
the incident and police were searching him. Police
learnt that the appellant had hired a bicycle from
Santosh Tandale (pw10) and had not returned the bicycle.
Police later on got information that the appellant was
working at a Dhaba (restaurant) at Wanjare Fata on
Beed-Ahmednagar road. The restaurant was run in the
name of "Khandeshwari Dhaba" by Ashok Yeole (pw7). So
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the police went and inquired with Ashok Yeole (pw7) and
showed him photograph of the appellant. The persons
working there identified the photograph as another
waiter working under name Ramesh Raut. The appellant
was then arrested. Thereafter the appellant produced
his clothes which were worn by him at the time of the
incident and a bicycle which was attached under
panchanama. The Chemical Analyser found human blood
stains on the pant of the appellant which was washed
several times in the mean time. The appellant was
absconding from 2.10.2004 to 15.11.2004. Finally the
police filed chargesheet against the appellant.
5. The prosecution examined Tarabai (pw3) at Exh.26
and Bapu (pw6) at Exh.31. Both of them supported the
prosecution case and stated that the accused used to
suspect character of Manjubai and used to illtreat, beat
and drive her out. Manjubai had come to them before 15
days before the incident. The accused came on earlier
day and they had dinner at night. Thereafter Manjubai
and the appellant went to sleep in the room called
"Malwad". According to Tarabai (pw3) at 4.00 a.m. she
saw appellant opening the door of the house, but she
thought that he might be going out for answering
nature’s call. Both witnesses also stated that at about
6.30 a.m. Tarabai opened the door, saw Manjubai lying
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dead and Tarabai shouted and Bapu (pw6) also came there.
They saw Manjubai was lying dead in a pool of blood.
Thereafter neighbours were called. The accused was
missing.
6. The said evidence of inmates of the house is
further corroborated by neighbour Ambadas Gavane (pw5)
who stated that he was knowing deceased Manjubai. She
had come to reside with her sister Tarabai (pw3) 8-10
days prior to the incident. He had also seen the
appellant at village Hingni on the previous day of
incident in the evening. At about 6.30 p.m. the
brother-in-law of Tarabai, by name Krishna, came to him
at 6.30 a.m. and told him that the appellant had killed
his wife Manjubai and he wanted to make a phone call.
7. This evidence is further supported by the police
patil Pandurang Zambare (pw8) who is examined at Exh.33.
He stated that he was residing in his field at Hingni.
At about 9.00 a.m. he came to village locality. People
had gathered at the house of Popat Pawal the husband of
Tarabai. On inquiry he came to know that sister of
Tarabai was dead inside the house and so he went and saw
the dead body. There were injuries on the forehead of
the deceased. So he went to Ashti police station and
lodged report Exh.34 which was treated as accidental
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death report and inquiry was taken over by Head
Constable Madhukar Shinde (pw9)
8. Madhukar Shinde (pw9) stated at Exh.35 that he
went to the place of the incident, drew inquest
panchanama and spot panchanama and also recorded
statement of Tarabai (pw3) which was treated as
complaint.
9. The evidence of Madhukar Shinde (pw8) is further
corroborated by panch Laxman Zambare (pw1) examined at
Exh.20. He proved the spot panchanama. The inquest
panchanama Exh.18 is admitted by the accused under
Section 294 of the Criminal Procedure Code. It is
abundantly clear that it was a homicide.
10. Dr. Kalkute (pw4) performed the postmortem on
the dead body on same day and he found following
external injuries on the person of the deceased.
"(I) Clean lacerated wound on left eyebrow
laterally, size 2 x 1 x 1/2 C.M.
(II) Clean lacerated wound on scalp,
posteriorly, just behind left ear, size 5 x 1 x
1/2 C.M.
(III) Clean lacerated wound on left parietal
region on scalp, size 2 x 1 x 1/2 C.M.
(IV) C.L.W. on left pinna posteriorly, 2 x
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1/2 x 1/2 C.M.
(V) C.L.W. in front of left pinna 1 x 1/2 x
1/2 C.M.
(VI) Fracture of mandible on chin and just
below left ear. "
. On internal examination the doctor found
following injuries.
"(I) Head injury blood clot blackish red in
colour, in frontal area lateral to left eye, size
2 x 2 x 1/2 C.M.
(II) Blood clot just behind left ear
posteriorly, 5 x 1 x 1/2 C.M.
(III) Blood clot just below left parietal
region, 2 x 1 x 1/2 C.M. "
. According to the doctor, the external injuries
mentioned at Sr. Nos. I to III correspond to the
internal injuries noted and the cause of death was
intracranial haemorrhage due to head injury associated
with mandible fracture.
11. All the witnesses have stated about the iron
pestle stained with blood lying near the dead body of
Manjubai. So all above said evidence clearly showed
that Manjubai and the appellant had slept together in
the room called "Malwad" at night. Since early morning
of the incident the appellant was missing and Manjubai
was found dead in the house. It is argued before us
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that though Tarabai (pw3) and Bapu (pw6) had slept in
the kitchen which was nearby, they did not hear any
sound or shout. If a person fast asleep is given blow
with heavy iron article like pestle on head, there are
no chances of raising any voice by such person and,
therefore, if nobody had heard any sound or shouts of
Manjubai, it is not unnatural.
12. The learned advocate also drew our attention to
cross-examination of Bapu (pw6) and argued that Bapu has
not informed police patil or police immediately. The
conduct of the appellant is also worth considering. The
appellant was not seen since prior to 6.30 a.m. till he
was arrested after one and half months. Police
Sub-Inspector Salve (pw11) has stated that he took over
investigation on 2.10.2004 at 10.00 p.m. The offence
was registered under Section 302 of the Indian Penal
Code. Since it was late at night, he went through the
papers, but did not go to the scene of offence. Already
inquest and spot panchanamas were drawn. The accused
was absconding. He tried to search and trace out the
accused, but could not find him. He also went to Hingni
and recorded the statements of witnesses. He went to
village Diksal to trace out the accused. Head Constable
Shinde (pw9) was sent for tracing out the accused. It
transpired that the accused had hired one bicycle from a
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cycle mart at Mirajgaon. So Police Sub-Inspector Salve
went and met the shop keeper who is Santosh Tandale
(pw10) and told him not to disclose anybody about his
arrival at the shop, but to inform him if the appellant
returned for returning the bicycle. He continued the
search of the appellant at places like Jamkhed,
Mirajgaon, Diksal, Khadkat and other villages, but
accused was not found. He sent articles like, sari of
the deceased, her petticoat, simple earth, blood mixed
earth, blood stained pestle to the Chemical Analyser.
He produced the report of the Chemical Analyser at Exhs.
43 and 44. Thereafter he was asked to hand over the
investigation to the Police Inspector Bandapatte (Pw12)
on 25.10.2004.
13. Police Inspector Bandapatte (pw12) stated that he
also recorded statements of some witnesses. Then he
learnt that one person having bicycle with him and
belonging to village Mirajgaon had come to Khandeshwari
Dhaba situated at Manewadi shivar in Patoda Taluka near
Nagar-Beed road. The photograph of the appellant was
available with them and, therefore, they went to the
said Dhaba (restaurant) and inquired with the owner
regarding the appellant - Navnath Waghmare. On seeing
the photograph the workers working in the said Dhaba
said that one Ramesh Raut just looking like the person
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in the photograph was working in the said Dhaba. The
appellant was found sitting in the nearby agricultural
land. He was arrested and Exh.47 was drawn. Thereafter
the appellant showed willingness on 18.11.2004, while in
the police custody, to produce the bicycle and his blood
stained clothes. Accordingly memorandum was prepared.
Thereafter the appellant again took police and panchas
to Khandeshwari Dhaba and produced one pant and shirt
from a drawer of pan shop nearby the Dhaba. He also
produced bicycle which was attached under panchanama
Exh.25. The said evidence is supported by the panch on
discovery panchanama - Rajendra Tawale (pw2). The
clothes of the accused were also sent to the Chemical
Analysis and the report of the Chemical Analyser
detected the traces of human blood on the pocket of the
pant.
14. The police also recorded the statement of the
owner of the cycle mart - Santosh Tandale (pw10) who
proved that the appellant had taken on hire the said
bicycle.
15. Thus, in this case the circumstances proved
clearly indicate that the appellant had slept with
deceased Manjubai in the same room on fateful night.
The appellant left the house just before Tarabai (pw3)
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woke up at about 6.00 a.m. and thereafter he was
missing. Tarabai (pw3) when went to woke up the
appellant and Manjubai, saw Manjubai lying dead in the
pool of blood. The iron pestle used for making powder
of chilly was lying there. It was stained with blood.
16. The evidence of the doctor shows that the
injuries were possibly caused by the iron pestle -
article no.2. The accused was working in Khandeshwari
Dhaba under pseudonym ’Ramesh Raut’. He did not attend
funeral of his wife and was absconding for one and half
months. There was also motive in as much as there was
suspicion about the character. He had quarrels with the
wife. So in our opinion the chain of the circumstances
is complete.
17. The learned advocate cited some cases. The first
is Kantilal alias K.L.Gordhandas Soni vs State of
Gujarat (AIR 2003 SC 684). In that case it was held,
the circumstances that the accused was seen at the house
of deceased on fateful day, he had given gold ornaments
to gold smith for melting and he had sold gold ingots to
a Jeweller were not established. The neighbour who had
deposed to have seen the accused-appellant in the house
on fateful day was not found trustworthy. He could not
state how he could identify the accused-appellant though
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there was no light and his statement was recorded after
39 days. So that was the decision on the facts of the
said case.
18. The second case cited is State of U.P. vs Arun
Kumar Gupta (AIR 2003 SC 801). In that case the
witnesses who had seen accused and deceased entering
house of accused, disclosed that fact at the time of his
examination. It was found that the venue of offence was
most unsuitable for offence. The blood stained articles
recovered were not sent for examination. The evidence
was not found reliable. Though it is alleged that
injuries were caused inside the house, the body of the
deceased was found in a well. There was no trail of
blood from house to well where dead body was found.
Therefore it was held in the facts of the said case that
evidence was not sufficient to base conviction on the
basis of circumstantial evidence.
19. ln the case of Joseph s/o Kooveli Poulo vs State
of Kerala (2000) 5 SCC 197, deceased, an employee of a
school was taken away from the school by the
accused-appellant under a false pretext. She was last
seen alive in the company of the appellant and the
jewels worn by her at the time of her leaving the school
with appellant were seized on the basis of information
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given by the appellant. The appellant instead of
explaining those incriminating circumstances had taken a
defence of total denial of everything when those
circumstances were brought to his notice by the Court.
Such denial was held to be providing missing link
connecting the appellant with the crime.
20. In the present case also the appellant has come
with a case of total denial. He does not explain what
had happened in the room in which he was sleeping with
his wife Manjubai, why he left the house without telling
anyone before 6.00 a.m. and under what circumstances
Manjubai had sustained injuries.
21. It may be noted that Dr.Kalkute (pw4) in his
statement has stated that the death must have been
caused about 6 to 7 hours after the last meal and it has
come in the evidence of Tarabai (pw3) that she herself,
Manjubai, the appellant and Bapu (pw6) all had dinner at
8.30 p.m. or so. So the death must have occurred
somewhere at 3.00 to 4.00 a.m. when the appellant alone
was in the company of the deceased. In the facts and
the circumstances of the case, we find no merit in the
appeal and the same deserves to be dismissed.
22. In the result, the appeal is dismissed.
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J.) H.PATIL, J.)
(P.R.BORKAR, J.) (P.R.BORKAR, (P.R.BORKAR, J.) (NARESH H.PATIL, J.) (NARESH (NARESH H.PATIL, J.)
dbm/cra155.06
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