Bombay High Court
Digambar Shashikant Shinde vs The State Of Maharashtra on 20 June, 2014
Author: V.K. Tahilramani
Bench: V.K. Tahilramani
1
APEAL.384-2012.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 384 OF 2012
DIGAMBAR SHASHIKANT SHINDE
R/o Wagholi, Taluka Malshiras,
District- Solapur. ..Appellant
Vs.
THE STATE OF MAHARASHTRA ..Respondent
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Smt. B.P. Jakhade, Advocate (appointed) for the Appellant.
Smt. V.R. Bhonsale, A.P.P. for the Respondent-State.
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CORAM: SMT. V.K. TAHILRAMANI &
A.S. GADKARI, JJ.
JUNE 20, 2014.
ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.):
1 The appellants-original accused has preferred this appeal against the judgment and order dated 29.8.2011 passed by the learned Ad-Hoc Additional Sessions Judge, Malshiras, Solapur, in Sessions Case No. 37 of 2010. By the said judgment and order, the learned Additional Sessions Judge convicted the appellant under ::: Downloaded on - 26/06/2014 23:50:15 ::: 2 APEAL.384-2012.sxw Section 302 of IPC and sentenced him for the said offence to life imprisonment and fine of Rs.2500/-, in default RI for 1 month.
2 The prosecution case briefly stated, is as under:
(i) Deceased Vijaya was the daughter of Vitthal Patil (PW-2).
PW-2 Vitthal is also the complainant in the present case. The appellant-Digambar Shinde was husband of Vijaya. The marriage of the appellant and deceased Vijaya took place in the year 2000. One son and one daughter were born to the appellant and deceased, by name Pranav and Digvijaya (PW-3). The daughter was elder to the son Pranav. She was about seven years old at the time of the incident. It is the prosecution case that the appellant was addicted to liquor and he used to subject deceased Vijaya to ill-treatment and torture. Appellant intended to sell his house. However, his wife Vijaya opposed the same. About six months prior to the incident at the time of Ganpati festival, the appellant had assaulted his wife Vijaya, due to which two teeth of Vijaya were broken. PW-2 Vitthal took Vijaya to dentist and dentist fitted artificial teeth in place of dislodged teeth. Vitthal paid fees of dentist. On account of this ::: Downloaded on - 26/06/2014 23:50:15 ::: 3 APEAL.384-2012.sxw incident Vijaya resided with her parents at Dahiwali for a period of four months. Thereafter the appellant came to the house of Vitthal and he assured Vitthal that he would treat Vijaya properly. Thereafter appellant took his wife Vijaya to Wagholi. The appellant treated Vijaya properly for a period of one month. Thereafter, he again started ill-treating and torturing her in usual manner.
(ii) The appellant used to work as a wireman and customers used to come to his house for doing work of wiring. Due to this the appellant suspected chastity of his wife Vijaya. On 16.1.2010 the appellant again came home in intoxicated condition. He started abusing his wife Vijaya and told her that he wanted to sell his house and told her that she should not stay in the house and she should go away. His wife Vijaya told him that if their house is sold where they would reside. Thereupon the appellant assaulted Vijaya with fist blows and kicks and told her that she should go out of the house and threatened her that he would kill her if she did not allow him to sell the house. On account of this incident, Vijaya went to Akluj police station and lodged FIR. The said FIR was lodged on 17.1.2010 at 2.15 p.m. The said FIR is at Exhibit 13.
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(iii) The actual incident occurred on 17.1.2010. In the evening of 17.1.2010 the appellant, his wife Vijaya, their daughter Digvijaya (PW-3), and son Pranav were at home. At about 7 p.m. the appellant started assaulting his wife Vijaya in usual manner. At that time also Vijaya resisted the sale of their house by the appellant. Thereupon the appellant pressed the neck of Vijaya by thumb. Thereafter the appellant removed gold ornaments (ear-rings) of Vijaya and went away. When this incident took place PW-3 Digvijaya the daughter of appellant and deceased was in the house. She witnessed the incident. After the appellant left the house, he did not return back and he was ultimately arrested on 2.5.2010 i.e. almost 3 and ½ months after the incident.
(iv) After the incident, Digvijaya shook the body of her mother, but her mother did not get up. Therefore she and her brother went to sleep. In the morning Digvijaya again shook the body of her mother, but that time also her mother did not get up. Digvijaya therefore went to the neighbour's house i.e. Kesharbai and called her.
Kesharbai told her that her mother has died. Digvijaya then ::: Downloaded on - 26/06/2014 23:50:15 ::: 5 APEAL.384-2012.sxw requested her neighbour Shri Sanjay Misal to inform her grand-
father on telephone. Accordingly Sanjay Misal informed PW-2 Vitthal, grandfather of Digvijaya on telephone. Vitthal then came to the house of his daughter. He saw the dead body of Vijaya in the house. Vitthal therefore went to Akluj police station and lodged report. The police registered the said report as ADR (Exhibit 14). In the said report Vitthal told the police that his daughter had died due to assault or poisoning. Police visited the spot of incident and prepared panchanama of the spot and also prepared inquest panchanama. Then dead body was sent for postmortem.
(v) PW-5 Dr. Ramesh Ukarande performed the postmortem on the dead body of Vijaya. Dr. Ukarande noticed the following injuries on the person of deceased Vijaya:
"contusion, single, thumb size on neck, right side of thyroid cartilage, red oedema present. Abrasion, 3 to 4 in number, about 1 inch to ½ inch in length on neck, left side of thyroid cartilage, red.
He found internal injuries as under:
"Tracheal rings 2 and 3 ruptured. Trachea congested froath present."
However, Dr. Ukarande sent vicera to CA for analysis for ::: Downloaded on - 26/06/2014 23:50:15 ::: 6 APEAL.384-2012.sxw presence of poison probably because Vitthal stated in his report that his daughter died due to assault or poisoning. Hence, Dr. Ukarande reserved his opinion in relation to cause of death. After receipt of opinion relating to vicera the said doctor gave final cause of death that death was due to Asphyxia due to throttling. In the opinion of the Doctor the external and internal injuries specified in the postmortem report are sufficient to cause death of human-being. The injuries are possible by pressing of neck of human-being with hand.
Thereafter FIR of PW-2 Vitthal came to be recorded. Thereafter investigation commenced. The appellant was arrested on 2.5.2010.
After completion of investigation the chargesheet came to be filed.
3 Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and came to be tried. The defence of the appellant was of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal.
::: Downloaded on - 26/06/2014 23:50:15 ::: 7APEAL.384-2012.sxw 4 We have heard Smt. Jakhade, learned Advocate for the appellant and Smt. Bhonsale, learned APP for the respondent-State.
We have carefully considered their submissions, the facts and circumstances of the case, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the reasons stated hereinbelow, we are of the opinion that the appellant has caused murder of his wife Vijaya by throttling her.
5 The conviction of the appellant is mainly founded on the evidence of PW-3 Digvijaya who was the daughter of the appellant and deceased Vijaya. Digvijaya was about 7 years old at the time of the incident. Digvijaya has stated that at the time of the incident her father, mother and younger brother Pranav were residing in Wagholi, Taluka Malshiras. She stated that her father used to frequently beat her mother since her mother was not allowing him to sell their house. Her father was working as a wireman. On the day of the incident also her father started beating her mother in usual manner.
::: Downloaded on - 26/06/2014 23:50:15 ::: 8APEAL.384-2012.sxw That time also her mother prevented her father from selling their house. Then her father pressed the neck of her mother by thumb.
Her father removed ear-rings of her mother and he went away. She shook the body of her mother, but her mother did not get up.
Thereafter Digvivijaya and her younger brother went to sleep. Her father did not return back home that night. Next morning Digvijaya again shook her mother, but that time also her mother did not get up. Digvijaya therefore went to the house of her neighbour Kesharbai and called her. Kesharbai examined the dead body of Vijaya and told Digvijaya that her mother had expired. Digvijaya requested her neighbour Sanjay Misal to inform her grandfather Vitthal (PW-2) on telephone. Thereafter her grandfather came to the house and saw dead body of Vijaya. Her grandfather thereafter went to the police station and lodged report. Digvijaya stated that she thereafter narrated the incident to her grandfather. Nothing has been elicited in the cross-examination of Digvijaya so as to cause us to disbelieve her evidence.
::: Downloaded on - 26/06/2014 23:50:15 ::: 9APEAL.384-2012.sxw 6 The evidence of Digvijaya is totally corrborated by the medical evidence. PW-5 Dr. Ukarande who conducted the post mortem on the dead body of Vijaya has stated that cause of death was asphyxia due to throttling and injuries are possible by pressing of neck with hand. The nature of the injuries, the circumstances in which the body was found and the other evidence on record clearly points out to a case of homicidal death.
7 In addition to the evidence of Digvijaya, the prosecution has relied on Exhibit 13 which is an FIR registered by deceased Vijaya against her husband i.e. the appellant on 17.1.2010 at 2.15 p.m. This FIR was lodged on the same day of the incident in question. The FIR pertains to the incident which had occurred on 16.1.2010. In the said FIR Vijaya has stated that her husband i.e. the appellant herein was addicted to liquor and he used to abuse her and beat her. Vijaya had remained quiet, but she found that the ill-
treatment to her was increasing. In the said FIR Exhibit 13, Vijaya has stated that on 16.1.2010 at about 1 p.m. her husband came ::: Downloaded on - 26/06/2014 23:50:15 ::: 10 APEAL.384-2012.sxw home in intoxicated condition and abused her. She has further stated that appellant told her that he wanted to sell their house and she should not stay in the house and she should go out of the house.
Vijaya told the appellant that if he sold their house where they would live and she would not allow him to sell their house. When Vijaya said so, the appellant assaulted her by kicks and fist-blows and gave her threat that he would kill her. The said FIR was lodged on 17.1.2010 at 2.15 p.m. and the incident had occurred just few hours thereafter. This FIR Exhibit 13 can be treated as dying declaration in which deceased Vijaya has stated that as she had resisted to sell their house, appellant had threatened to kill her. The appellant has put his threat into action by killing Vijaya just about 4 to 5 hours later.
8 The prosecution has also placed reliance on the evidence of PW-2 Vitthal who is the father of Vijaya and father-in-law of the appellant. His evidence shows that on the day previous to the day of incident the appellant abused, assaulted Vijaya and threatened his wife Vijaya that he would kill her. Vitthal has stated that on account of this incident Vijaya lodged FIR Exhibit 13.
::: Downloaded on - 26/06/2014 23:50:15 ::: 11APEAL.384-2012.sxw 9 The prosecution has relied on the evidence of PW- 2 Vitthal who is the father Vijaya to show the motive for the appellant to commit the offence. PW-2 Vitthal who is father of Vijaya has stated that the marriage between the appellant and deceased Vijaya took place somewhere in the year 2000. One son and one daughter were born to the appellant and the deceased. The daughter was elder to the son. PW-2 Vitthal has stated that appellant used to subject Vijaya to ill-treatment and torture and used to beat her. The appellant intended to sell his house which was objected to by Vijaya. Prior to six months of incident i.e. during Ganpati festival the appellant had assaulted Vijaya and broken two teeth of Vijaya. The dentist fitted two artificial teeth in place of dislodged teeth. Vitthal paid the charges for the said treatment. On account of this incident Vijaya resided in the house of her father Vitthal at Dahiwali for period of 4 months. Thereafter the appellant came to the house of Vitthal along with Tanaji of Babhulgaon. In the presence of Tanaji, the appellant offered to give good treatment to Vijaya. Thereafter the appellant took Vijaya with him to Wagholi.
::: Downloaded on - 26/06/2014 23:50:15 ::: 12APEAL.384-2012.sxw 10 The evidence of Vitthal further shows that the appellant gave good treatment to Vijaya for a period of one month and thereafter again started ill-treating her in usual manner. The appellant was doing wiring work, hence, customers came to the house of the appellant to ask about their wiring work, due to this the appellant used to suspect chastity of Vijaya. Vitthal has also stated that one day prior to the incident, the appellant threatened Vijaya to kill her since she had objected to selling their house at Wagholi.
Vijaya therefore lodged an FIR (Exhibit 13) against the appellant at Akluj police station. Vijaya signed on the FIR in the presence of Vitthal. Thus the evidence of PW-2 Vitthal shows the motive for the appellant to commit murder of Vijayai.e. appellant suspected chastity of his wife Vijaya and moreover, the appellant wanted to sell his house and his wife Vijaya was resisting the same.
11 Mrs. Jakhade, the learned Advocate appearing for the appellant submitted that Vitthal has stated that his grand-daughter Digvijaya informed him about the incident hence he came to Wagholi and found dead body of his daughter and then he went to the police ::: Downloaded on - 26/06/2014 23:50:15 ::: 13 APEAL.384-2012.sxw station and lodged report. Mrs. Jakhade submitted that if Digvijaya had informed Vitthal that her father strangulated her mother Vitthal would have lodged FIR and not ADR Exhibit 14. This according to her shows that the entire case is false. In this connection we would like to refer to the evidence of Digvijaya. Digvijaya has stated that on next morning when Digvijaya shook body of her mother, her mother did not get up. She then went to the house of the neighbour Kesharbai and called her. Kesharbai examined the body of her mother and stated that her mother has expired. Digvijaya then requested her neighbour Sanjay Misal to inform her grandfather on telephone about the incident. Thereafter her grandfather came to the house. It is to be noted that PW-2 Vitthal is a poor, illiterate agriculturist. It is nobody's case that Sanjay Misal told Vitthal that Vijaya was murdered. The evidence of a witness has to be read as a whole and one stray sentence cannot be read out as context. Thus the evidence of both Vitthal and Digvijaya clearly shows that Sanjay Misal informed Vitthal about death of his daughter Vijaya and he has not stated about cause of death. Hence, we find no merit in this submission.
::: Downloaded on - 26/06/2014 23:50:15 ::: 14APEAL.384-2012.sxw 12 Much capital cannot be made of the fact that no FIR was registered on 18.1.2010 itself because PW-2 Vitthal himself went to Akluj police station on 18.1.2010 and informed the police station about the death of his daughter Vijaya. The said information was reduced by the police in writing which is at Exhibit 14. PW-2 Vitthal informed the police that the death of Vijaya must have been occurred due to assault or poisoning. He had requested the police to initiate action in this direction. In such case, it was the first information report regarding death of Vijaya given by PW-2 Vitthal to Akluj Police station and the information regarding death due to assault or poisoning was the first information report in the true sense.
However, despite this fact, the police cited it as report and registered it as an ADR. On the very day inquest panchanama of the dead body of Vijaya was prepared by the police. Police observed the mark of strangulation on the neck of Vijaya and reddish-white froth coming from her nose which is seen from the inquest report. In spite of this, Police did not think it is a case of murder and registered the case as an accidental death. In the present case, the complainant PW-2 ::: Downloaded on - 26/06/2014 23:50:15 ::: 15 APEAL.384-2012.sxw Vitthal adopted the correct procedure by immediately going to Akluj Police station and informing the police about death of Vijaya and stating his suspicion about the same. In such case it is purely the fault of police that they did not promptly lodge the FIR, but cited it as report and registered it as ADR. The conduct of police is found to be highly reprehensible. On this ground, the complainant PW-2 Vitthal cannot be blamed for delay in lodging the FIR. As stated earlier, PW-2 Vitthal is an illiterate agriculturist as is appearing from FIR and other documents. As an illiterate and uneducated person, PW-2 Vitthal would not know whether his statement recorded by the police is registered as ADR and not FIR.
13 It is contended by Mrs. Jakhade that on 18.1.2010 the complainant i.e. PW-2 Vitthal reported the said incident to the police station. However police instead of registering it as first information report, registered it as Accidental Death Report bearing no.7 of 2010 and offence came to be registered on 23.1.2010. It was contended that though the police conducted inquest panchanama and took necessary steps for the purpose of investigation, the said documents ::: Downloaded on - 26/06/2014 23:50:15 ::: 16 APEAL.384-2012.sxw cannot be accepted, as the first information report/crime came to be registered only on 23.1.2010. We may note here that Section 174 of Cr. P.C. deals with the power of police to enquire and report on suicide etc. Section 154 of Cr. P.C. deals with recording of the information in cognizable case. Even though it is contended by the learned Counsel for the appellant that the police ought to have registered first information report i.e. crime as contemplated under Section 154 of Cr. P.C. and ought not to have recorded accidental death as contemplated under Section 174 of Cr. P.C., we are of the considered opinion that under Sections 154 and 174 of Cr. P.C., what is prescribed is the investigation after receipt of particular information and only the nomenclature of the document i.e. either first information report or CR number or ADR differs respectively.
We therefore find no substance in the submission of the learned Counsel for the appellant that police in the present case had wrongly undertaken the investigation after lodging the same as Accidental Death Register No.7 of 2010.
::: Downloaded on - 26/06/2014 23:50:15 ::: 17APEAL.384-2012.sxw 14 There is one other circumstance which goes against the appellant. The circumstance is that the appellant immediately left the house after the incident and absconded. He was traced by the police on 2.5.2010 i.e. almost after a period of three and half months after the day of the incident. Mrs. Jakhade tried to contend that Vijaya must have been killed by robbers who took away her gold ornaments. However, if such was the case, then appellant would not have disappeared for almost 3 and ½ months from his place of occupation as well as his residence in Wagholi. This fact of absconsion also goes against the appellant.
15 Thus, taking into consideration all the record, we find that there is sufficient evidence to connect the appellant with the murder of his wife Vijaya. Thus, we see no merit in the appeal. The appeal is dismissed.
16 At this stage, we must record our appreciation for Advocate Mrs. B.P. Jakhade who is on the High Court Legal Services Committee and who was appointed to represent the appellant in this ::: Downloaded on - 26/06/2014 23:50:15 ::: 18 APEAL.384-2012.sxw appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.5000/-.
(A.S. GADKARI, J.) (SMT. V.K. TAHILRAMANI, J.)
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