Bombay High Court
Nandakishor S/O. Kapurchand Sawalakhe ... vs The State Of Maharashtra Thr. P.S.O. ... on 3 April, 2018
Author: M. G. Giratkar
Bench: B. R. Gavai, M. G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Appeal No. 396 of 2017
Sau. Mona W/o Nandkishor Sawalakhe,
Aged about 24 years,
R/o. Gandhi Ward, Eklari, Tah. Mohadi,
Dist. Bhandara. (Presently
Central Prison At Nagpur). ..... Appellant
// Versus //
The State of Maharashtra,
Through P.S.O., Police Station Bhandara,
Tahsil & District Bhandara. ..... Respondent
with
Criminal Appeal No. 593 of 2017
Nandakishor S/o. Kapurchand Sawalakhe,
Aged about 27 years,
R/o. Gandhi Ward, Eklari, Tah. Mohadi,
Dist. Bhandara. (Presently
Central Prison At Nagpur). ..... Appellant
// Versus //
The State of Maharashtra,
Through P.S.O., Police Station Bhandara,
Tah & District Bhandara. ..... Respondent
Shri C. R. Thakur, Advocate for the appellants
Shri M. K. Pathan, Additional Public Prosecutor for the respondent
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CORAM : B. R. GAVAI AND
M. G. GIRATKAR, JJ.
Date : 3/4/2018.
Judgment (Per : M. G. Giratkar, J.)
Both the appellants assailed the judgment of conviction
passed by learned Additional Sessions Judge, Bhandara in
Sessions Trial No. 29/2015. Both the appellants came to be
convicted for the offence punishable under Section 302, 404 and
201 read with Section 34 of the Indian Penal Code and sentenced
them as under :
(1) Accused no. 1 and 2 are convicted for the offence punishable
under Section 302 read with section 34 of Indian Penal Code,
vide section 235(2) of the Code of Criminal Procedure and
each of them are sentenced to suffer imprisonment for life
and to pay fine of Rupees 10,000/- (Rupees Ten Thousands
only); in default, to suffer rigorous imprisonment for Six
months.
(2) Accused no. 1 and 2 are further convicted for the offence
punishable under Section 404 read with section 34 of Indian
Penal Code, vide section 235(2) of the Code of Criminal
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Procedure and each of them are sentenced to suffer rigorous
imprisonment for Three years and to pay fine of Rupees
3,000/- (Rupees Three Thousands only); in default, to suffer
rigorous imprisonment for Three months.
(3) Accused no. 1 and 2 are further convicted for the offence
punishable under Section 201 read with section 34 of Indian
Penal Code, vide section 235(2) of the Code of Criminal
Procedure and each of them are sentenced to suffer rigorous
imprisonment for Three years and to pay fine of Rupees
3,000/- (Rupees Three Thousands only); in default, to suffer
rigorous imprisonment for Three months.
2. The case of the prosecution against the appellants can be
summarized as under.
(i) Kapurchand Sawalakhe was residing at Bapera, Taluka
Mohadi. His first wife left him before 30-35 years back. Thereafter
he married with Vithabai. Vithabai delivered two daughters and
one son (appellant - Nandakishor). His son Nandakishor was
residing along with his wife at Eklari in the house of his father.
Kapurchand and Vithabai were also residing with Nandakishor.
Two months before the incident, Kapurchand was suffering from
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paralysis. Both appellants viz. Nandakishor and Mona were always
quarreling with Kapurchand and his wife Vithabai, therefore, they
went to Bapera and started residing with his son Kheman.
(ii) On 15-4-2015, Vithabai came to Eklari to the house of
Nandakishor to take some household articles. He was informed by
one Arjun Kamane that Vithabai kept some articles at his house, at
about 11.00 a.m., he requested her to come for lunch. She went to
the house of Nandakishor but did not return. He informed
Kapurchand that there might be quarrel between Nandakishor and
deceased. Kapurchand suspected something would happen,
therefore, he went to Police Outpost, Warthi at about 7.00 p.m. He
along with police went to the house of appellants. Both appellants
were present. Kapurchand enquired about Vithabai. Both
appellants told them that Vithabai went to Village Tarsa.
Complainant suspected about foul play, therefore, he requested
police and police patil of village to search the house of appellants.
One divan (box bed) was in the kitchen room of the appellants. It
was locked. After opening the lock, dead body of Vithabai was
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found. Golden ornaments of Vithabai were found missing.
Kapurchand asked his son Nandakishor as to how dead body was
found in the divan (box bed), then Nandakishor told them that
there was quarrel between them. He killed deceased Vithabai and
kept her dead body in divan (box bed). Kapurchand lodged report
in Police Station, Bhandara. Crime was registered vide Exhibit 53.
(iii) API Shri Verma investigated crime, after complete
investigation, filed charge-sheet before the Judicial Magistrate First
Class, Bhandara which in turn committed to the Court of Sessions
for trial.
(iv) Charge was framed at Exhibit 19. Same was readover and
explained to both the accused/appellants. They pleaded not guilty
and claimed to be tried. Defence appears to be of total denial.
Prosecution has examined 13 witnesses. At the conclusion of trial,
both the appellants came to be convicted as stated above.
3. Heard Shri Thakur, learned counsel for the appellants
and Shri Pathan, learned Additional Public Prosecutor for the
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State/respondent.
4. Conviction of appellants based on circumstantial
evidence. Perused the evidence on record. Complainant
Kapurchand died during the pendency of the proceedings before
the trial Court. His brother Zumanlal Sawalakhe (P.W. 4) has
stated in his evidence that Kapurchand was residing at Bapera. At
about 6.00 p.m. Kapurchand came to house and requested him to
accompany him. He along with Kapurchand went to Warthi. They
went to Warthi Police Station. They suspected murder of Vithabai.
Therefore, they requested police to accompany them to Eklari.
5. Police Constable Panchbudhe came along with them to
Eklari. Door was closed from inside. Door was knocked, but it was
not opened. At last, Nandakishor opened the door from inside.
Both accused were present. Both accused/appellants questioned
him as to how he came there. He told that Kapurchand suspected
murder of Vithabai. Appellants told them that they have not
committed such act. Appellants told them that Vithabai had been
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to house in the morning, however, she had gone to Revral Village
and will return late in the evening on next day. Police Constable
Panchbudhe searched the house. Dead body of Vithabai was found
in divan (box bed). He along with Kapurchand went to Police
Station, Bhandara. Kapurchand lodged report, Exhibit 53.
6. P.W. 5 Arjun Kamane has stated in his evidence that on
15-4-2015, Vithabai came from Village Bapera. She came to his
house at Eklari. She purchased ration from Fair Price Shop. After
collecting ration, she came to his house and kept it in his house.
She told him that she was going to the house of her son
Nandakishor. She went to the house of appellants at about 10.30
a.m. to bring some articles. Vithabai did not return to his house.
He waited for Vithabai for lunch up to 1.15 p.m. Thereafter he sent
his son Shubham to the house of Nandakishor for enquiry.
Nandakishor told his son that Vithabai did not visit his house. In
the meantime, Kapurchand telephoned him to make enquiry about
Vithabai. Thereafter he informed Kapurchand that Vithabai did not
return back to his house from the house of appellants. In the
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evening, he came to know that dead body of Vithabai was found in
divan (box bed).
7. P.W. 6 Santosh Balpande has stated that he was
informed by Sarpanch Rameshwar that wife of Kapurchand was
murdered. He went to the house of appellants. Both appellants
were present. He asked them if anything was wrong, he told them
that Kapurchand was suspecting appellants about the murder of
Vithabai. Both the appellants denied to commit any murder. In his
presence, house of appellants was checked. They searched divan
(bed box). It was locked from one side. Police Constable
Panchbudhe took out rafter from one side after lifting mattress. He
found Vithabai concealed in divan. He questioned accused about
the dead body of Vithabai, then accused told that he was annoyed
and as such, killed her by means of wooden rafter. He shown them
wooden plank/rafter.
8. P.W. 7 Vasant Chamat has stated that on 15-4-2015 at
about 10.00 a.m., deceased Vithabai had been to his shop to
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purchase grains. In the evening, he came to know that Vithabai
was murdered. P.W. 1 Shilpa Gajbhiye proved the spot
panchanama, Exhibit 42, seizure panchanama vide Exhibit 43.
Wooden rafter was stained with blood.
9. P.W. 2 Manish Kamble has stated that when accused
Nandakishor was in police custody, he confessed to show concealed
ornaments and burnt clothes. They went to Eklari to the house of
Nandakishor. Accused shown golden ornaments which were kept
in almirah. Those were seized by the police vide Exhibit 46/1.
10. Medical Officer Dr. Dinesh Kuthe (P.W. 11) has stated in
his evidence that on 16-4-2015, he conducted postmortem on the
dead body of Vithabai. As per his opinion, death was due to head
injury and asphyxia due to throttling. Accordingly, he issued
report, Exhibit 85. He has stated that he received one letter along
with wooden rafter. As per his opinion, injuries found on the dead
body can be caused by the said rafter.
11. As per the evidence of Medical Officer and postmortem
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report, Exhibit 85, it is clear that death of deceased was homicidal.
As per opinion of the Medical Officer Dr. Kuthe, cause of death was
due to head injury and throttling. From the evidence of P.W. 4 and
First Information Report, Exhibit 53, it is clear that there was
strained relations between appellant Nandakishor and deceased.
On the day of incident, deceased visited to the house of appellant.
There was struggle between deceased and appellant. Appellant was
also examined by Medical Officer Dr. Yogesh Nakade (P.W. 12). He
found four injuries on the person of appellant Nandakishor.
Accordingly, he issued certificate, Exhibit 91. This itself shows that
there was struggle between the appellant Nandakishor and
deceased. During the struggle, Nandakishor sustained injuries.
Appellant gave blow of rafter on the head of deceased and
concealed the dead body in divan (box bed).
12. Nothing is brought on record in the cross-examination of
any of the witnesses to disbelieve their evidence. From the
evidence of prosecution witnesses, it is clear that appellants were
present in the house. Dead body was found in the divan (box bed)
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of the appellants. As per the confession statement of appellant
Nandakishor, he discovered golden ornaments from the almirah of
his house. Appellant Nandakishor gave extra judicial confession to
P.W. 6 Santosh Balpande. P.W. 6 Santosh has stated in his
evidence that he searched the house of appellant with the help of
Police Constable Panchbudhe. He found dead body of Vithabai in
divan (box bed). He asked appellant Nandakishor, then he told
that he was annoyed, as such, killed her by means of wooden rafter.
13. Circumstantial evidence are proved against appellant
Nandakishor. Hon'ble Apex Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra reported in (1984)
4 SCC 116 has laid down five guiding principles (panchsheels) as
under :
(1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established,
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
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(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act
must have been done by the accused.
14. Following are the material circumstances proved against
appellant Nandakishor :
(1) Appellant Nandakishor not explained as to how dead
body of his mother Vithabai was found at the time of search by
the witnesses and Police Constable Panchbudhe.
(2) Extra judicial confession stated by P.W. 6 shows that
appellant Nandakishor committed murder of deceased by
wooden rafter. This evidence is corroborated by the evidence of
Medical Officer. As per his evidence, cause of death of Vithabai
was head injury and throttling.
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(3) Medical Officer Kuthe examined wooden rafter which was
seized from the house of accused, found blood stains on it. As
per his opinion, head injury and throttling can be possible by
that wooden rafter.
(4) As per C.A. report, wooden rafter, Exhibit 101 was stained
with human blood.
(5) As per the evidence of P.W. 5 Arjun, deceased Vithabai
came to his house at about 10.30 a.m. She kept some articles at
his house and went to the house of her son Nandakishor. She
did not return till 1.15 p.m. He sent his son to the house of
Nandakishor. Then Nandakishor told him that Vithabai did not
visit his house. He informed her husband. Thereafter her
husband along with police came to the house of Nandakishor
and during search, dead body of deceased was found.
(6) Appellant Nandakishor removed all golden ornaments of
deceased and concealed in the almirah.
(7) As per his confessional statement, Exhibit 46, golden
ornaments were recovered.
(8) Appellant not given explanation as to how dead body of
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Vithabai was found in divan (box bed) of his house.
(9) Appellant Nandakishor not explained injuries on his
person. P.W. 12 Dr. Nakade proved injuries on his person as per
MLC, Exhibit 91. P.W. 12 Dr. Nakade found following injuries.
(i) Abrasion Lt. Mallour Prominence, 3x0.5 cm., age of
injury within 12 hours. Caused by hard and small and rough
object.
(ii) Abrasion Right hand, size 2x1 cm, age of the injury
within 12 hours, Caused by hard and small and rough object.
(iii) Abrasion Right hand, size 2x1 cm, age of the injury
within 12 hours, Caused by hard and small and rough object.
(iv) Abrasion left forearm, size 2x2 cm, age of the injury
within 12 hours, Caused by hard and small and rough object.
(10) Injuries on the person of appellant Nandakishor show that
there was struggle between deceased and appellant at the time
of incident.
All these strong circumstances proved by the prosecution clearly
show that appellant Nandakishor and none else has committed
murder of his mother Vithabai and, therefore, he is rightly
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convicted by the trial Court. Hence, appeal filed by Nandakishor is
liable to be dismissed.
15. There is no specific evidence against the wife of
Nandakishor. Appellant Mona was in the house along with her
husband Nandakishor. There is no specific evidence against Mona
that she has committed murder of deceased Vithabai. Extra judicial
confession of Nandakishor shows that he himself beat deceased by
wooden rafter. None of the witnesses have stated against the
appellant Mona about her participation. But it is clear from the
evidence on record that Mona was present along with her husband
Nandakishor. She helped him to conceal the dead body.
Therefore, she is liable for conviction only for the offence
punishable under Section 201 of the Indian Penal Code. Hence, we
proceed to pass the following order.
ORDER
(i) Criminal Appeal No. 593/2017 is dismissed and Criminal Appeal No. 396/2017 is partly allowed.
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(ii) The conviction of appellant Sau. Mona W/o Nandkishor Sawalakhe for the offences punishable under Sections 302 and 404 read with Section 34 of the Indian Penal Code is quashed and set aside. She is acquitted of the charges for the offences punishable under Sections 302 and 404 read with Section 34 of the Indian Penal Code.
(iii) Insofar as conviction of appellant Sau. Mona W/o Nandkishor Sawalakhe for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code is concerned, the same is maintained. However, the sentence is reduced to the period already undergone. Insofar as the order with regard to payment of fine is concerned, the same is maintained.
(iv) Appellant Sau. Mona W/o Nandkishor Sawalakhe is already on bail. Her bail bond stands discharged.
JUDGE JUDGE
wasnik
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