Bombay High Court
Ramesh Umaji Ghene vs The State Of Maharashtra on 30 October, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:24265-DB
appeal-537.22
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.537 OF 2022
Ramesh S/o Umaji Ghene,
Age-45 years, Occu:Labour,
R/o-Talkhed, Taluka-Majalgaon,
District-Beed.
...APPELLANT
(Orig. Accused No.3)
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Police Station, Majalgaon (Rural),
Taluka-Majalgaon, District-Beed.
...RESPONDENT
...
Mr. Satej S. Jadhav Advocate for Appellant, appointed
through Legal Aid Committee.
Ms. V.S. Choudahri, A.P.P. for Respondent - State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 30th OCTOBER, 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Original accused No.3 i.e. husband of deceased Anuradha
stood prosecuted in Sessions Case No. 10 of 2012 before the
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learned Additional Sessions Judge, Majalgaon, District-Beed
along with his two brothers i.e. accused No.1 - Bapu, accused
No.2 - Uttam and sister-in-law i.e. accused No.4 - Kamal, (wife
of original accused No.1 Bapu) for the offence punishable under
Section 498-A, 302, 201 read with Section 34 of the Indian Penal
Code. The present appellant alone came to be convicted by the
learned trial Judge for the offence punishable under Sections
302, 201 of the Indian Penal Code. Hence this Appeal.
2. Informant PW-3 Eknath Narayan Landge, resident of Beed,
lodged the First Information Report (for short "FIR") on 13 th
October 2011 with Civil Hospital Police Chouki, Beed, which
came to be transmitted to Majalgaon Police Station and then
offence was registered vide Crime No.131 of 2011 for the
offence punishable under Sections 498-A, 306, 504, 506 read
with Section 34 of the Indian Penal Code. It was informed in the
said FIR that Anuradha was his elder daughter, who was married
to present appellant i.e. original accused No.3 about 15 years
prior to the FIR. Anuradha and accused No.3 have two sons by
name Akshay and Satyam and a daughter by name Anjali.
Accused No.3 was having agricultural land and also business of
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sweet mart. They all were residing separately from the brothers
of accused No.3. The agricultural land and house property was at
village Talkhed. Accused No.3 got addicted to liquor about three
years prior to the FIR and also bad vices of playing cards.
Accused No.3 used to beat and ill-treat Anuradha and children.
The other accused persons were also ill-treating Anuradha and
therefore, Anuradha came to Beed in the house of the informant,
along with the children. Thereafter, even accused No.3 joined
them at Beed. After some period i.e. six months prior to the FIR,
Anuradha along with her children and husband returned back to
Talkhed. In the meantime, when they shifted to Beed, accused
No.1 Bapu had taken possession of the house as well as
agricultural land owned by accused No.3 and he was cultivating
the same. After Anuradha went back to Talkhed, she herself and
accused No.3 requested accused No.1 and others to vacate the
house. Accused No.1 was not ready and therefore, for a month
Anuradha and family resided in the house of cousin brother of
accused No.3. The accused persons were insisting that Anuradha
should return back to her parents house and they were
questioning as to why she had returned to Talkhed. They were
giving threats to kill her. In the meantime due to intervention of
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the persons in the village, possession of the house was given to
accused No.3.
3. It is the further prosecution story that informant Eknath
received information from his grand-son Akshay on 12 th October
2011 that Anuradha has hanged herself and she is being taken
to Beed. Around 12.00 noon the informant along with his two
sons went to Vithai Hospital, Beed. But it appears that accused
No.3 had taken Anuradha to Deep Hospital where she was
admitted at about 1.45 p.m. Treatment was given to her but she
was unable to speak and even unable to open her eyes. The
informant had noted ligature mark around her neck. Anuradha
succumbed at about 8.05 a.m. on 13th October 2011.
4. After the MLC was given, inquest panchnama was carried
out by the Police and dead body was shifted for postmortem. FIR
came to be registered and investigation was taken up.
Panchnama of the spot was carried out. Statements of witnesses
were recorded. Seized muddemal was sent for chemical analysis
and after the investigation was over, charge-sheet was filed
against four persons. After committal of the case, trial was
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conducted. Prosecution examined in all seven witnesses to bring
home the guilt of the accused. After considering the evidence on
record, the learned trial Judge, as aforesaid, held accused No.3
only to be the perpetrator of the crime and sentenced him to
suffer rigorous imprisonment for life and to pay fine of
Rs.2000/-, in default to suffer simple imprisonment for four
months for the offence punishable under Section 302 of the
Indian Penal Code. Accused No.3 has been further sentenced to
suffer rigorous imprisonment for three years and to pay fine of
Rs.1000/-, in default to suffer simple imprisonment for three
months for the offence punishable under Section 201 of the
Indian Penal Code. He has been acquitted of the offence
punishable under Section 498-A read with Section 34 of the
Indian Penal Code. Accused Nos. 1, 2 and 4 have been acquitted
of all the offences.
5. At the time of Appeal before this Court, legal aid has been
provided to the appellant. Learned Advocate Mr. Satej Jadhav
representing the appellant - original accused No.3, submitted
that the impugned Judgment is the example of perversity and
the outcome of wrong and illegal appreciation of evidence. The
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case was based on circumstantial evidence. Informant was
admittedly neither present nor he was the person to go to the
place of offence immediately after the news came. PW-6 Akshay
is the person who went to the spot immediately as per the
prosecution story. He is the school going son of deceased
Anuradha and appellant. However, his testimony would show
that when he went to the house from the school, he claims that
Anuradha was serious and was unable to speak. Anuradha
showed mark around her neck by her hand and then showed the
finger towards the door of the house, stating that those persons
had hanged her and at that time accused Nos. 1, 2 and 4 were
standing near the door. Accused No.3 was admittedly not present
at that time. Merely because it is the house of the accused -
appellant, it was not expected that he would explain the
circumstances in which his wife was found injured and then
succumbed to those injuries. The principle in Section 106 of the
Indian Evidence Act has been wrongly applied by the trial Court.
Nobody has been examined by the prosecution who would say
that accused No.3 was present in the house just prior to the
incident. The persons who were allegedly indicated by deceased
Anuradha have been acquitted by the trial Court. Therefore, on
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the same set of evidence if the co-accused have been acquitted,
similar treatment ought to have been given by the learned trial
Judge to the present appellant also.
6. It has been further submitted on behalf of the appellant
that PW-3 Eknath is the informant - father but he is not stating
that Anuradha was in a position to speak or make gestures when
he met her prior to her death. His testimony is mainly to support
the allegation in respect of harassment, however, all the accused
persons have been acquitted from the offence punishable under
Section 498-A of the Indian Penal Code. Panch to the spot
panchnama has turned hostile. PW-2 Dr. Anshuman Bahir was
the autopsy doctor. He had noted two external injuries and some
internal injuries on the dead body. He along with Dr. Waghmare
had completed the postmortem and came to the conclusion that
death of Anuradha was due to "asphyxia due to hanging". Here
the rope or such instrument with which the hanging would have
been done, has not been collected. PW-4 Dr. Anant Mulay was
the medical practitioner from Deep Hospital where Anuradha was
admitted. It appears that the present appellant was
accompanying his wife at the relevant time. PW-4 Dr. Anant
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Mulay was of the opinion that the cause of death of patient
Anuradha was "due to partial hanging with respiratory paralysis
shock". Here the death was not instantaneous if at all there
would have been hanging. When PW-6 Akshay went to the
house, he had seen his mother lying on the cot. That means
nobody had seen Anuradha in hanging position and it is not the
case of the prosecution that thereafter somebody had took her
down. Testimony of PW-6 Akshay is absolutely not reliable as it
can be seen from the cross-examination that he was under the
custody of his maternal uncle and therefore, possibility of he
being tutored cannot be ruled out. There was nothing on record
to connect the appellant with the crime, yet he has been
convicted. Therefore, the impugned Judgment deserves to be
set aside.
7. Per contra, the learned APP strongly submitted that the
learned trial Judge has appreciated the evidence properly. When
PW-6 Akshay went to house, he found that the mother was lying
on the cot and when he asked as to what had happened, by
gesture the communication was tried to be made. The ligature
mark was shown and then finger was pointed towards the door
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of the house where accused Nos. 1, 2 and 4 were standing.
Testimony of PW-3 Eknath would show that Anuradha was
subjected to cruelty by the accused persons and threat to kill her
was also given. The incident has taken place inside the house of
accused No.3 i.e. present appellant and therefore, it was for him
to explain those circumstances. Unfortunately the lady could not
be saved but the circumstances were sufficient to explain the
evidence that has come against accused No.3. He has been
rightly convicted.
8. Here, the present case is based mainly on the
circumstantial evidence and the alleged oral dying declaration
given to PW-6 Akshay. From the witnesses who have been
examined by the prosecution, we could get that he is the person
who could reach to the place immediately or in other words, he
has been posed as the first person to reach inside the house and
to whom Anuradha had said something by gesture and therefore,
we would like to consider his testimony first. PW-6 Akshay has
deposed that the incident had taken place around 10.30 a.m. on
12th October 2011 at village Talkhed. He was having his six
monthly examination and therefore, he was in the school. He
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says that before he went to school the accused persons were
quarreling with his mother and they were saying that she would
not be left alive in the village. The accused persons were asking
why Anuradha has come to Talkhed and were giving threat to kill
her. As regards this prior incident is concerned, we will take it up
later because it not only includes accused Nos.1, 2 and 4 but
also accused No.3 i.e. present appellant.
9. PW-6 Akshay has further deposed that when he was in the
school, his father i.e. appellant came there and directed him to
go to the house. He then left the examination and went to the
house. His brother and sister were also in the school on account
of their examination and then the father brought them also to
house. Here, this witness has not given details as to why his
father asked him to go to the house. The exact conversation
between him and his father has not been told by him
intentionally or it has not been extracted by the prosecution.
How a student who was giving the examination, would have
been allowed to go home by leaving the examination in between,
is a question and the prosecution has not examined the school
teacher or teachers who permitted Akshay, his brother and sister
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to leave the school without giving examination. The brother and
sister of PW-6 Akshay have not been examined to state as to
what the father had told them also when he allegedly asked
them to leave the examination and to go to house. This witness
is not explaining as to whether all of them went together to the
house or he alone proceeded ahead and did not wait for his
father to fetch brother and sister. Thereafter Akshay says that he
entered the house and noticed that his mother was serious and
was lying on the cot. He asked mother as to what has happened
but she was unable to speak. She showed mark on her neck to
the witness by hand and also showed her finger towards the
door of the house to indicate that those persons have hanged
her. The witness says that at that time accused Nos. 1, 2 and 4
were standing near the door of the house. Akshay then says that
he asked the accused persons about it but they did not reply.
Therefore, he went to his another uncle Datta, who came along
with him to the house and then they had called the doctor.
Doctor then directed them to shift Anuradha to Government
Hospital. Thus, it is to be noted from whatever he has deposed,
he does not say about the presence of present appellant inside
the house when Anuradha gave the said oral dying declaration.
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10. Here, we would like to clarify a fact that an oral dying
declaration can be given by gestures also and when such
gestures are made, then it was incumbent upon the trial Judge
to take those gestures precisely in the same way in the narrative
form as the witness was enacting. Here, we may not go into the
aspect as to whether Anuradha was in a fit mental state to give
the statement because it would depend upon, whether the entire
testimony of PW-6 Akshay is believable or not. Even if it is taken
as it is, yet the appellant was not present at all when Anuradha
showed the finger towards the door of the house, indicating that
she was hanged by those persons, and only accused Nos. 1, 2
and 4 were standing near the door. Here the learned trial Judge
has acquitted accused Nos. 1, 2 and 4, towards whom Anuradha
had allegedly indicated as per the testimony of PW-6 Akshay.
PW-6 Akshay is totally silent as to where his father went. He
thereafter says that he along with his another uncle Datta,
shifted his mother to the hospital. PW-7 Datta is the uncle of
PW-6 Akshay to whom he says that he was called.
11. PW-7 Datta says that on the day of incident around 12.00
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noon when he was proceeding on the road, he heard noise of
Akshay and at that time Akshay came to him and then along
with Akshay, he went to doctor. Dr. Chandak examined Anuradha
and directed them to shift her to Government Hospital and
accordingly Anuradha was shifted. It is to be noted that
testimony of Datta is totally silent as to where the appellant was.
He does not say that he had tried to establish communication
with Anuradha to know what had happened to her. Therefore, his
testimony is absolutely not helpful to the prosecution.
12. Now, we would turn towards the first part from the
testimony of PW-6 Akshay, which we had left about the prior
incident of the same day in which he told that the accused
persons were quarreling with Anuradha. As per the prosecution
story and the cross-examination of PW-6 Akshay along with
testimony of the informant PW-3 Eknath, what could be gathered
is that six months prior to the incident, the family of Anuradha
had shifted back to Talkhed and prior to that all of them were
residing at Beed for a considerable period. Even accused No.3
i.e. present appellant was also with Anuradha and children when
they were residing at Beed. Then the question arises, as to why
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on the day of incident he would have joined the other accused in
quarreling with Anuradha and would have threatened her to kill.
According to PW-3 Eknath, when Anuradha, appellant and
children were at Beed; accused Nos. 1 and 2 had taken forcible
possession of the land and house of accused No.3. If this is so,
then accused No.3 would not have joined accused Nos. 1 and 2,
rather that dispute would have been between the brothers and
Anuradha would not have been blamed. Informant also says that
due to mediation by the villagers accused No.1 has vacated the
house of accused No.3. In the cross-examination, he has
admitted that he was not present at the time of said mediation.
None of the villager has been examined to support the said
contention. According to PW-3 Eknath, accused Nos. 1, 2 and 4
were harassing Anuradha and giving abuses as well as threat to
kill. That means, he is ruling out the present appellant from such
act. Taking into consideration this aspect, we do not find that
there was any motive for the appellant to commit any crime.
13. As per the testimony of PW-6 Akshay, when he entered the
house Anuradha was lying on the cot and she had the ligature
mark around her neck. The same fact has been stated by PW-3
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Eknath also but the said information was given to him by Akshay
and therefore, he is hear-say witness on that point. This fact is
then required to be tested with the medical evidence. PW-4 Dr.
Anant Mulay, is the doctor from Deep Hospital who examined
Anuradha clinically upon admission on 12 th October 2011. He
says that Anuradha was the case of partial hanging with
respiratory paralysis with shock. There is no explanation sought
from him by the prosecution as to what he wants to say about
'partial hanging'. In common parlance, partial hanging may occur
when victim's feet or any body part would be touching to the
ground. As compared to the complete hanging, the ligature mark
would be paramount and no part of the body would be touching
the ground. But as regards the partial hanging is concerned, the
body part would be touching the ground. Here the prosecution
has not sought explanation as to whether it was the case of
hanging or strangulation. But if we consider the postmortem
report and the testimony of PW-2 Dr. Anshuman Bahir, then his
finding is, cause of death was "hanging", thereby he wanted to
suggest that it is complete hanging. The question, therefore, is
how the body would have been brought down and who has done
it. In case of complete hanging the death would have been
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instantaneous but here the prosecution story is that the incident
took place around 10.30 a.m. on 12 th October 2011 and
Anuradha died on the next day around 8.00 a.m. PW-2 Dr.
Anshuman Bahir has stated that if one is tried to be strangulated
by coiling string around his neck and if said person resist said
attempt by obstructing by catching the string, then the ligature
mark may not appear at the place where the obstruction is
caused by fingers. In case of forceful strangulation by string,
there may be fracture of laryngeal and fracture of hyoid bone. In
fact when the prosecution has not come with the case of
strangulation and findings of this witness are not of
strangulation, why such questions were asked, is another
confusion. Thus we get a different opinion between the medical
officers. The medical officer who examined Anuradha first in
time, says that it was the case of partial hanging, whereas the
autopsy doctor says that it was complete hanging, yet they both
are not explaining as to how that would have been taken place
when PW-6 Akshay says that when he entered the house,
Anuradha was lying on the cot.
14. If we consider the spot panchnama, it was attempted to be
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got proved through PW-1 Mazhar Deshmukh, but he has turned
hostile. Yet if the contents are considered, there was no evidence
indicating hanging. Interestingly, the investigating officer has not
been examined in this case who could have further explained the
situation. When PW-3 Eknath lodged the report, it was registered
under Section 306 of the Indian Penal Code but later on it
appears that Section 302 of the Indian Penal Code came to be
added. Initially when the charge was framed on 6 th August 2013
vide Exhibit-26, it was under Section 306 of the Indian Penal
Code with other Sections. But later on the same Judge has
altered it on 10th September 2013 and added Section 302 and
201 of the Indian Penal Code, which according to us, appears to
be without application of mind. Unless there was some evidence,
the charge ought not to have been altered.
15. PW-4 Dr. Anant Mulay from Deep Hospital, has produced
documents of treatment. Exhibit-51 gives history and it is said
that the history has been narrated by patient's relative
(husband) that, patient on bed in unconscious position today at
12.00 noon i.e. 12th October 2011. It also bears signature of the
present appellant when it was conveyed to him that her
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condition was serious. Thus, it shows that appellant was with
Anuradha and it is not as stated by PW-6 Akshay that he was
taking the lead in shifting mother to the hospital.
16. The learned trial Judge totally erred in ignoring all those
aspects. Merely because Anuradha was found unconscious in the
house owned by present appellant; there was no such situation
where the principles of Section 106 of the Indian Evidence Act
should have been invoked. Burden never shifted on the
shoulders of the appellant to explain the circumstances in which
Anuradha was found unconscious with ligature mark. It was the
day time and unless it would have been proved that appellant
was inside the house at the relevant time, burden would not
have been on his shoulders to give any kind of explanation. The
oral dying declaration has also been misunderstood and wrongly
applied against the appellant when he was not at all present
when those gestures were allegedly made. As regards the said
gestures are concerned, it raises further doubt that if at all the
accused persons i.e. especially accused Nos. 1, 2 and 4 would
have committed the crime, why they would have come inside the
house after Akshay came. The accused persons would always
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try to avoid such situation and their presence is also not stated
by PW-7 Datta.
17. While acquitting all the accused persons from the offence
punishable under Section 498-A of the Indian Penal Code, the
learned trial Judge has disbelieved PW-3 Eknath and PW-6
Akshay. The halfhearted attempt to believe them in respect of
Section 302 and 201 of the Indian Penal Code cannot be said to
be legal and therefore, the impugned Judgment is perverse. It is
the result of wrong appreciation of evidence and wrong
application of principles of Section 106 of the Indian Evidence
Act. The conviction awarded, therefore, cannot be allowed to be
sustained, it deserves to be set aside by allowing the Appeal.
Hence the following order:-
ORDER
(I) The appeal stands allowed. (ii) The conviction awarded to the appellant - Ramesh Umaji Ghene by learned Additional Sessions Judge, Majalgaon,
District-Beed in Sessions Case No.10 of 2012 on 07.05.2014 for ::: Uploaded on - 08/11/2023 ::: Downloaded on - 23/02/2024 09:43:10 ::: appeal-537.22 20 the offence punishable under Sections 302, 201 of the Indian Penal Code stands quashed and set aside.
(iii) The appellant stands acquitted of the offence punishable under Sections 302, 201 of the Indian Penal Code.
(iv) He be set at liberty, if not required in any other case.
(v) The fine amount deposited, if any, be refunded to the appellant after the statutory period is over.
(vi) We clarify that there is no change as regards the order in respect of disposal of muddemal.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/NOV23
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