1 APEAL 1207 of 2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1207 OF 2004 Bhausaheb Mahadeo Ghule, Convict No.C/13702, Presently lodged at Yerwada Central Prison, Pune. .....Appellant V/s. The State of Maharashtra ..... Respondent Mr.Abhaykumar Apte, for the appellant (appointed). Mrs.V.R.Bhosale, APP, for the respondent. CORAM :P.B.MAJMUDAR & A.A.SAYED, JJ. DATE : 01st APRIL, 2011 ORAL JUDGMENT : ( PER P.B.MAJMUDAR, J. ) : - 1. This appeal is directed against the judgment and order of conviction recorded by the 5th Additional Sessions Judge, Pune, in Sessions Case No.91 of 2003. By the impugned judgment and order, the learned Sessions Judge convicted the appellant/accused for the offence punishable under Section 302 of Indian Penal Code under Section 235(2) of Code of Criminal Procedure and awarded punishment of life imprisonment and to pay a fine of Rs.500/-, in default to suffer R.I. for two months. 2. In a nutshell, the case of the prosecution is as under : - The appellant/accused on 27-11-2002 at 9.30 a.m., at 2 APEAL 1207 of 2004 Village Vithalwadi Dehugaon, Tal. Haveli, Dist. Pune, committed the murder of his wife Laxmibai Ghule and thereby committed an offence punishable under Section 302 of Indian Penal Code. The deceased Laxmibai was legally wedded wife of the appellant (hereinafter referred to as the ‘accused’). The accused used to quarrel with his wife on the ground that his two sons namely Rahul and Ravindra refused to give him any money for consuming liquor. The wife of the accused because of the illtreatment meted out to her by the accused, was compelled to leave the house of the accused and used to stay with her parents. Subsequently, she came back to the matrimonial house with son Ravindra and his wife Anita, who were initially residing separately. In the month of October 2002, deceased quarreled with Laxmibai and beat her and therefore, the latter left the house and went to her parental house. Subsequently, accused went to the house of his in-laws on 22-11-2002 and brought back Laxmibai with him. 3. It is the case of the prosecution that on 25th and 26th November, 2002, the accused had quarreled with his wife Laxmibai and beat her. On 27th November, 2002 in the morning at 8.00 a.m., the accused raised quarrel with the deceased beat her and asked his daughter- in-law Anita to leave the house. Thereafter, accused closed the door of the house from inside and started beating Laxmibai. The accused 3 APEAL 1207 of 2004 committed murder of Laxmibai by strangulation in his house, which is situated at Dehugaon Vithalwadi and thereafter approached Dehuroad Police Station and reported orally that quarrel took place between him and Laxmibai and due to that, he killed the deceased Laxmibai by strangulation. The investigation agency after completion of investigation, submitted chargesheet and the matter was committed to the Court of Sessions for trial and the same was numbered as Sessions Case No.91 of 2003. 4. A charge was framed against the accused on 07-03-2003 under Section 302 of Indian Penal Code. The accused did not plead guilty to the charge and claimed to be tried. On behalf of the prosecution, seven witnesses were examined and the learned Trial Judge found that the prosecution has proved its case beyond reasonable doubt and convicted the accused as aforesaid by the impugned judgment and order. Being aggrieved and dissatisfied by the impugned judgment and order, the accused preferred the above appeal. 5. On behalf of the prosecution, Rahul Bhausaheb Ghule was examined as P.W.1 at Exh.10. The said witness is the son of the accused and the deceased Laxmibai. In the examination-in-chief, he has stated that he was initially residing with his father along with mother Laxmibai and another brother Ravindra and his wife Anita. As per the evidence of 4 APEAL 1207 of 2004 the said witness, accused was serving in SKF Pvt. Ltd., and was removed from the service in the year 1993 and since then, he was not doing any work. It has come in the testimony of P.W.1 that his father and mother used to quarrel with each other and the accused was addicted to liquor since 1993. The accused used to demand money from the deceased for consuming liquor and on that count, accused used to abuse and assault deceased Laxmibai frequently. The said witness has further deposed that due to quarrel between accused and Laxmibai, the accused even used to drive them away from the house, which resulted into taking shelter in the house of their maternal uncle. Due to disturb atmosphere in the house, his brother Ravindra after his marriage, left the house of the accused and started residing separately with his wife. 6. The witness further states on 27-10-2002, the witness received a telephone call from his mother at Village Wehergaon, intimating the former that the accused was beating her mercilessly and it was not possible for her to live in the house of the accused as she apprehended danger to her life. On her request, he along with other relatives, went to Village Dehugaon and took his mother Laxmibai to Village Wehergaon. At that time, accused started abusing them. The accused thereafter attempted to take back Laxmibai to the matrimonial house, but the Laxmibai refused to go back to the matrimonial house. The witness 5 APEAL 1207 of 2004 categorically stated that such things occurred 3 to 4 times every year after 1993. In the examination-in-chief, the witness further stated that on 27-11-2002, he received a phone call from Tukuram Hulawale from Village Dehugaon Vitthalwadi, intimating him that the accused has killed his mother by strangulating her with the help of a bandage. Hence, the witness rushed to his village, but by that time, police had sent the deadbody to the Rural Hospital, Kamshet for post mortem. The deadbody was subsequently handed over to them. 7. In the cross-examination, P.W.1 stated that in the year 1993, the accused purchased a tempo and gave it for plying on hire to his brother Ravindra. He stated that the marriage of his brother took place in May 2002. He denied the suggestion that after 1993, the accused was maintaining the family. He denied the suggestion that the accused was never addicted to liquor, nor he used to illtreat and beat the deceased in connection with demand of money for liquor. The witness also denied the suggestion that the accused had paid Rs.3,00,000/- to his maternal uncle Dashrath for purchasing agricultural land and on that count, quarrel took place between the accused and his deceased mother. 8. The prosecution has examined Ravindra Bhausaheb Ghule as P.W.2 at Exh.11, who is the second son of the deceased. The said witness has categorically stated that since 1993 accused has been removed 6 APEAL 1207 of 2004 from SKF Ltd., and he was not doing any work. He claims to be plying tempo for carrying goods on hire basis since 1993. He deposed that since 1993 accused used to quarrel with the deceased and also used to beat her by demanding money for liquor. The witness further deposed that due to illtreatment and beating at the hands of the accused, her mother was frequently visiting her parental house situated at Wehergaon. According to the version of the said witness, he started to reside separately from the accused along with his wife and his brother went to Village Wehergaon for staying there in view of the quarrels between accused and the deceased. In the month of October, 2002 on the request of the accused, the witness claims to have started residing with him and at that time, her mother was staying at her parent’s house at Village Wehergaon. The witness deposed that prior to 2-3 days of the incident in question, the accused went to Village Wehergaon and took the deceased Laxmibai back to Village Dehugaon Vithalwadi. The witness stated that on 26-11-2002, the accused was quarrelling with his mother Laxmibai throughout the day and on the next date i.e. 27-11-2002, he left the house for doing business. At 10.30 a.m. on the aforesaid day, one Anil Kalokhe from his Village came to Dehuroad and informed the witness that quarrel took place between the accused and the his mother Laxmibai and his mother was lying in the house and the accused has left the house by locking door of the house. 7 APEAL 1207 of 2004 Thereafter, the witness came back to his house at Village Dehugaon Vithalwadi and noticed that main door of the house was locked and rear door of the house was bolted from inside. Thereafter, accused came to the house along with the police and had opened the door by opening the lock with the help of key, which was with the accused. After entering into the house, the witness noticed that his mother was lying in a drawing room and a crepe bandage was tied around her neck and the bandage was of pink colour. The witness thereafter, found that his mother Laxmibai is already dead. The muddemal article crepe bandage was shown to the accused during the examination-in-chief, which the witness identified to be the same. 9. During the course of cross-examination, the witness denied the suggestion that quarrel between accused and deceased was going on due to the fact that his father was intending to purchase agricultural land and for that purpose, the accused had paid Rs.3 lakhs to his maternal uncle Dashrath and the said Dashrath had not purchased any land nor returned the amount to the accused. Nothing substantial has been brought out during the course of cross-examination of the said witness. 10. The prosecution has also examined Mrs.Anita Ravindra Ghule (P.W.3) at Exh.15, who claims to be the daughter-in-law of the deceased. She has stated in the evidence that in view of the quarrels 8 APEAL 1207 of 2004 which took place between accused and deceased, she along with her husband and two sons, left the house of the accused and was residing at Village Kiwle. She has deposed that in the month of September 2002, her husband Ravindra and she again went to reside at Dehugaon Vitthalwadi at the request of the accused as due to absence of Laxmibai, he is facing lot of difficulties i.e meals etc. Subsequently, on the request of the accused, Laxmibai was taken back to the house of the accused at Dehugaon Vithalwadi on 25-11-2002. The accused quarrelled with deceased Laxmibai on 25th and 26th November, 2002. According to the said witness, incident in question took place on 27-11-2002 in the house of the accused. On that day, her husband went along with tempo for performing his routine work at 9.00 a.m. The accused thereafter started quarrelling with the Laxmibai in kitchen and asked this witness to go out of the the house and after she went outside the house, the accused closed the doors of the house and locked the door from inside. The witness stated that even after her repeated request, the accused did not open the door of the accused. Thereafter, the witness went to the house of her sister-in-law Rohini Kaolkhe and asked her to come to their house stating that the accused has confined Laxmibai in the house and not allowing her to remain in the house. At that time, Rohini told to the said witness that she will come later on after completing bath of her child and accordingly, 9 APEAL 1207 of 2004 the witness claims to have returned to the house of the accused. The witness deposed that on the way to the house of the accused, she noticed that the accused was going towards Dehugaon on Hero Honda. After reaching the house, the witness noticed that the backside door of the house was bolted from inside, while front side door was locked from outside. The witness gave calls to her deceased mother-in-law, asking her to open the door of the house, but there was no response from inside the house of the accused. She further stated that she therefore went to the house of her neighbour Janabai and informed her about the aforesaid fact. In the meanwhile, her husband Ravindra and sister-in-law Rohini came to the house and the witness narrated the incident to them. After about half an hour, police accompanied by the accused, came their house and accused opened the lock of the house by taking out key from his pocket. After entering the house, the witness noticed that her mother-in-law Laxmibai was lying dead on the ground in the drawing room and a bandage was tied around her neck. Muddemal articles like lock and key and bandage were shown to the witness and she identified the same. 11. In the cross-examination, she has denied the suggestion that she was always quarreling with the deceased and for that reason, she along with her husband, were staying separately at Village Kiwle. The witness further stated that she is not knowing personally as to who had 10 APEAL 1207 of 2004 actually locked the front door of the house. She has denied the suggestion that there is no bolt to the backside door of the house. 12. The prosecution has also examined one Sanjay Namdeo Pol as P.W.4 at Exh.16. The said witness is a Panch witness. According to the said witness, he was called by the police on 27-11-2002 at 6.00 p.m., in the Dehuroad Police Station to act as a Panch. At that time, police seized clothes i.e. saree of green colour, one blouse, pieces of bangles and crepe bandage under the Panchanama Exh.17 in his presence. Nothing substantial has been brought out in the cross-examination of the said witness. 13. The prosecution has examined Dr.Mahdav Adelu Waghmare as P.W.5 at Exh.22. In the examination-in-chief, the witness has stated that in November 2002, he was attached to Primary Health Centre, Kamshet, Tal.Maval, Dist. Pune. On 27-11-2002 between 3.35 to 4.35 p.m., on the request of PSO Dehu Road, the witness claims to have carried out post mortem of dead body of deceased Laxmibai and found following injuries on the external examination of the deadbody : - 1) Digature mark around the neck region oblique in direction having size 14” x 1” x 1/4th” 2) Fracture of Hyoid bone 14. According to the said witness, both the above injuries were ante-mortem in nature. On the internal examination of the deadbody of 11 APEAL 1207 of 2004 the deceased, Dr.Waghmare (P.W.5) noticed following injuries : Brain – meningra was conjested. Thorax – Both the lungs were conjested. Dark blood poured out after taking section. Larynx trachea and broanchia were also conjested. Pericardium was conjested. Heart and large vessels were also conjested. Abdomen – teeth were intact. Toungs was in between teeth. Walls of stomach was conjested. Partially digested good particles were found in the stomach. Both the intestines were also found conjested. Splean, lever and kidneys were also conjested. 15. Dr.Waghmare (P.W.5) stated that on the basis of above findings, the cause of death of deceased was due to Asphyxia due to strangulation. Accordingly, he prepared post mortem report which is at Exh.23. He further stated that fracture of Hyoid bone is possible if neck of a person is strangulated by bandage and fracture of hyoid bone is sufficient to cause death of a person in ordinary course of nature. During the course of cross-examination, he denied the suggestion that he himself had not carried out post mortem of the deadbody. Nothing as such has been brought out in the cross-examination of the said witness. 16. Mr.Khaja Alisab Shaikh (P.W.6) was examined by the prosecution to prove the memorandum Panchanama Exh.27, seizure Panchanama Exh.28, the inquest Panchanama Exh.29 and the spot panchanama Exh.30. In the examination-in-chief, he has stated that on 27-11-2002 at about 11.00 a.m., he was called by the police to act as a 12 APEAL 1207 of 2004 Panch. The accused was in the custody of the police and he made a statement before the police and the Panchas that after killing his wife, he has locked his house and key of the lock is with him. Police accordingly prepared memorandum panchanama in his presence, which is at Exh.27. According to the said witness, the accused led them to his house and thereafter, accused took out key from his pocket of the shirt and opened lock of the house and door of the house. After entering into the house, they noticed that wife of the accused was lying dead in a room. Police prepared discovery panchanama in his presence which is at Exh.28. On the same day, at the request of the police, he acted as a panch for inquest panchanama of dead body of the deceased, which is at Exh.29. Spot panchanama is also prepared by the police in his presence which is at Exh. 30. In the cross-examination, he denied the suggestion that he is giving false evidence and that no panchanama was prepared in his presence. 17. Prosecution lastly examined Sunil Dadasaheb Gharge as P.W.7 at Exh.31. According to the said witness, from October 2002 he was serving as API in the Dehuroad Police Station. On 27-11-2002, the accused came to the police station and reported that due to torture to him by his wife, he committed murder of his wife by strangulating her with the help of crepe bandage in his house. After committing murder of his wife, he has locked his house and came to the police station and that he is also 13 APEAL 1207 of 2004 having key with him. The witness recorded the statement of the accused which is at Exh.32 and on the basis of the same, he registered an offence punishable under Section 302 of IPC vide C.R.no.140 of 2002 against the accused. He investigated the said crime and interrogated the accused in presence of panchas. The accused made a voluntary statement before him under memorandum panchanama Exh.27. Thereafter, accused led them to his house and took out key from his shirt and opened lock of the door. After entering into the house, the accused showed dead body of the deceased which was lying in a room. Accordingly, the witness prepared discovery panchanama vide Exh.28 and seized the lock and key under the discovery panchanama. On the day of incident, he along with panchas, visited the place of incident and prepared spot panchanama which is at Exh.30. The witness recorded statements of the witnesses and after completion of investigation, submitted a chargesheet before the Court. 18. The learned counsel for the appellant submitted that since the accused had purchased a tempo in 1993, which he gave to his son Ravindra for the business purpose and therefore, it cannot be said that accused was in need of money. Learned counsel for the appellant vehemently submitted that possibly his son Ravindra might not have given any share from his income, that the quarrel between accused and his wife might have taken place. He further submitted that except the interested 14 APEAL 1207 of 2004 witnesses, no other independent witnesses were examined by the prosecution to prove the alleged quarrels between accused and deceased Laxmibai. It is further submitted that as both the sons of the deceased were residing separately since 1993, they cannot have any personal knowledge about the quarrels that took place between the accused and the deceased. Learned counsel for the appellant contended that the evidence of Ravindra Ghule (P.W.2) about the quarrel between accused and deceased, can only be said to be hearsay evidence and there is a contradiction in the evidence of P.W.1, P.W.2 and P.W.3. regarding as to when Laxmibai was brought back at the house of the accused. Learned counsel for the appellant further submitted that as per the report of the Doctor (P.W.5), there was a blood in the right chamber of the deceased, which according to him, is not possible as blood cannot be conjested in the right chamber. Learned counsel for the appellant submitted that the say of panchas that the accused had opened the lock, cannot be taken into consideration and it cannot be said to be relevant fact. He further submitted that accused himself went to the police station and whatever he has stated before the police, therefore, cannot be treated as confessional statement and incriminating part cannot be taken in the FIR and can only be considered for starting the investigation. Learned counsel for the appellant further contended that since Ravindra was not doing any 15 APEAL 1207 of 2004 business, the accused purchased a tempo from his retiral funds in the year 1993 and therefore, it is not possible that murder is committed in view of the fact that in spite of demand, deceased Laxmibai was not giving any money to the accused. He submitted that when there is a death due to strangulation, the accused is also supposed to receive some injury on his hand. He further submitted that in any case, since the incident has happened in a spur of moment, the case may fall under Section 304(II) of Indian Penal Code, but not under Section 302 of Indian Penal Code, as the accused had no intention to commit murder of his wife. 19. On the other hand, learned APP submitted that in the instant case, prosecution has proved the motive of the accused, as motive for committing the offence is non-payment of any money to the accused in spite of demand. It is submitted by the learned APP that it has been proved in the evidence that the accused used to demand money from time to time and under the influence of liquor, he used to beat the deceased. It is submitted by the learned APP that accused killed his wife with a motive as well as with a knowledge and intention as he asked his daughter-in-law Anita (P.W.3) to go away from the house and thereafter, accused locked the door from inside and strangulated the deceased with the bandage. She further contended that initially accused tried to strangulate the deceased with a telephone wire, but he could not succeed and subsequently, he 16 APEAL 1207 of 2004 strangulated her with a crepe bandage. She also submitted that the telephone wire was also seized from the spot of incident. It is submitted by the learned APP that on the basis of evidence on record, offence punishable under Section 302 of Indian Penal Code is made out by the prosecution against the accused beyond reasonable doubt. 20. We have heard the learned counsel for the appellant and the learned APP and have gone through the evidence on record. It is required to be noted that it has come in the evidence that accused often used to beat the deceased from time to time all through out. Initially, she was residing with the accused along with two sons. Subsequently, deceased went to her parental house from where ultimately on 22-11-2002, she was brought back to the matrimonial house at the instance of Ravindra. From the evidence on record, it is clearly established that the deceased was subjected to illtreatment. It has also come in the evidence of Ravindra Ghule (P.W.2) that prior to 2-3 days of the incident, accused went to Village Wehergaon to bring back his mother Laxmibai to the house of the accused. It has also come in the evidence of P.W.2 and P.W.3 that they were residing with the accused at the relevant time. It has also been established by the prosecution that even after deceased came at her matrimonial home, she was subjected to illtreatment by the accused. In our view, there is no reason to disbelieve the evidence of P.W.2 and 3. 17 APEAL 1207 of 2004 Both of them were present in the house on the relevant day and naturally there is absolutely no reason to discard their evidence in any manner and there is no reason as to why they will depose falsely