The High Court of Judicature at Bombay dismissed the criminal appeal against conviction and sentence for murder and poisoning. The court held that the extra judicial confession and corroborative evidence were reliable, rejecting the appellant's claim of reasonable doubt.
Appeal dismissed; conviction and sentence confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1424 OF 2011
Pundlik Basu Chavan, Age-41 yrs, Occ-Labour, R/o-Hulartanda, Tal-Muddevihal, Dist-Vijapur. Presently R/o-Waghrali, Tal-Gadhinglaj, Dist-Kolhapur (At present lodged in District Prison, ...Appellant Kalamba, Kolhapur) (Ori.Accused)
Versus
The State of Maharashtra ...Respondent
Mr. Shekhar Ingawale I/b Mr. Anand S. Patil for the Appellant
Mr. H. J. Dedia, A.P.P for the Respondent-State
CORAM : SMT. V. K. TAHILRAMANI & REVATI MOHITE DERE, JJ. THURSDAY, 5th JANUARY, 2017
JUDGMENT (Per Revati Mohite Dere, J. ) :
June, 2011 passed by the learned Additional Sessions Judge, Gadhinglaj, Kolhapur, in Sessions Case No. 13 of 2010, convicting and sentencing the appellant as under :
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The said sentences were directed to run concurrently.
According to the complainant Kasim Nadaf (PW 3), the owner of a Mahindra Pick-up van, on 3rd March, 2010, when he was waiting at the stand for his vehicle to be hired, the appellant came up to him and stated that he wanted to carry domestic articles from Waghrali to Sawantwadi. The fair was settled for Rs. 1,600/-. Kasim went with his vehicle to Village Waghrali and the appellant loaded his articles in the van. The vehicle then proceeded to Sawantwadi via Ajra. Before reaching Sawantwadi, the vehicle stopped at a dhaba and the appellant called a person from his phone. The appellant thereafter, disclosed to Kasim that the person with whom he
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wanted to work has declined to engage him and hence, he wanted to return to Gadhinglaj. On being asked for return fare, the appellant agreed to pay an additional amount of Rs. 500/-. While crossing the ghat section at Amboli, the appellant asked Kasim to stop the vehicle near a valley, pursuant to which, the vehicle was stopped. The appellant got down from the said vehicle and went to the rear side. The appellant called Kasim to the rear side of the vehicle and disclosed that he wanted to throw one gunny bag in the valley. Kasim inquired as to what was there in the gunny bag, however, the appellant was reluctant to disclose the same. When Kasim insisted on disclosing the contents of the gunny bag, the appellant stated that his wife's dead body was in the gunny bag. On further inquiry, the appellant disclosed that he had throttled his wife as she was not of good character. Kasim lured the appellant by saying that the bag could be thrown elsewhere and proceeded further. On the way, near Village Madalge, Kasim's friend Rajendra Mahadik's (PW 26) vehicle crossed his vehicle. Rajendra was on his way to Ajra, to deliver sugarcane. Rajendra called Kasim and asked where he was going. Kasim asked Rajendra to come back and meet him, pursuant to which, Rajendra turned back. When Rajendra came near Kasim's vehicle, Kasim narrated the incident to him and asked
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him to inform the same to his friends at Gadhinglaj. Thereafter, Kasim proceeded to Gadhinglaj. After reaching Gadhinglaj, as per the information received, his friends encircled the vehicle and took the vehicle to the Gadhinglaj Police Station. At the Gadhinglaj Police Station, Kasim narrated the entire incident to the Police Station Officer. The Police Station Officer asked Kasim to take the vehicle to Nesari Police Station, as the place of incident i.e. Waghrali, fell within the limits of Nesari Police Station. A constable was provided to escort them to Nesari Police Station. On reaching Nesari Police Station, Kasim narrated the incident to the PSO on duty, pursuant to which, an FIR was lodged which is at Exhibit 11. Photographs of the vehicle were taken and the gunny bag was removed from the vehicle. On opening the said gunny bag, two pillows and a bedsheet were found and below that, the dead body of a women was found. Inquest panchnama was prepared. The appellant identified the body as being that of his wife Gulabi and thereafter, the body was sent for postmortem examination. PI Shri Yashwant Dhage (PW 28) prepared the panchnama of the scene of offence, recorded the statements of the witnesses and arrested the appellant. Statements of Kasim Nadaf (PW 3), Rajendra Mahadik (PW 26), Maruti Chougule (PW 27), Dinkar Mang and
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Shakil Nadaf were recorded under Section 164 of the Code of Criminal Procedure. After completion of investigation, charge-sheet was filed in the Court of the learned Judicial Magistrate First Class. Since the offence was sessions triable, the case was committed to the Court of Sessions.
The case of the appellant was of denial and false implication.
The prosecution in support of its case, examined 28 witnesses and the appellant examined one defence witness.
As far as PW 1-Gunvanta Patil; PW 2-Prabhu Desai, PW 12Gangaram Kambale; PW 14-Suresh Patil; PW 16-Janabai Patil; and PW 17Baburao Patil, are concerned, the said witnesses were declared hostile as they did not support the prosecution case. The said witnesses are residents of Village Waghrali, where the appellant was residing with Gulabi. PW 13Sadashiv Pradhan, the owner of the tenement, where the appellant and the deceased were residing; PW 6-Munaf Shinga, panch to the seizure of clothes of the deceased; PW 15-Ganpati Undalekar, panch before whom a disclosure was made by the appellant, with regard to the route taken and PW 24-Prema Chavan, daughter of the appellant were also declared hostile.
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As far as the other witnesses are concerned, PW 3-Kasim Nadaf is the complainant, to whom an extra judicial confession was made by the appellant; PW 4-Gansi Mitka, is the police head constable, who accompanied the complainant and appellant to the Nesari Police Station from Gadhinglaj Police Station; PW 5-Prakash Desai, is the police head constable who, at the relevant time, was on duty at the Gadhinglaj Police Station; PW 7-Rasul Mujawar, is the panch to the seizure of clothes of the appellant; PW8-Chandrashekhar Arbhavi, is the panch to the inquest panchnama and opening of the gunny bag; PW 9-Uttam Bhuimber, is the panch to the seizure of bangles and hairpin from the house of the appellant; PW 11-Parvati Kharabe, is the panch to the inquest panchanama; PW 18Dr. Avinash Nalavade, is the Medical Officer, who conducted the postmortem; PW 19-Jaywant Gurav, is the constable who recorded the FIR; PW 20-Birappa Kochargi, is the constable who seized the articles after the postmortem was performed; PW 21-Dharmendra Bagade, is the carrier of the articles to the CA; PW 22-Arun Shintre, is the interpreter, who interpreted the evidence of PW 23, as she was not conversant with the language; PW 23 is Zomibai Jadhav, the mother of deceased Gulabi; PW 25-Asha Rathod is the daughter of the deceased; PW 26-Rajendra Mahadik; PW 27-Maruti
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Chougule, are the friends of the complainant, who were informed of the incident and PW 28-Yashwant Dhage is the Investigating Officer. The appellant examined DW 1-Abdul Sattar Perampalli, the Magistrate who recorded the statements of the complainant PW 3-Kasim Nadaf and PW 26Rajendra Mahadik, under Section 164 of the Code of Criminal Procedure.
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Stations, which were on the way before reaching Gadhinglaj, on learning that there was a dead body in a gunny bag, makes the prosecution case doubtful. He further submitted that there is no evidence to show that the appellant was living with Gulabi at Waghrali, as none of the witnesses i.e. neighbours who were examined, have supported the prosecution case. He submitted that in view of the improbabilities and inconsistencies in the evidence as well as in the medical evidence, the appellant be given the benefit of doubt and be acquitted.
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consideration is, whether the dead body in the gunny bag was of the wife of the appellant i.e. Gulabi ? In order to prove the identity of the dead body, the prosecution has examined PW 23-Zomibai Jadhav. PW 23- Zomibai Jadhav, in her evidence, has deposed that her daughter Gulabi was married to one Mantesh Rathod from Narayanpur and that the couple had two children, a son Viresh and daughter Asha. She has stated that the appellant had taken Gulabi for labour work to Gadhinglaj. She has further stated that the appellant had taken Gulabi with him and that they were residing in Village Waghrali and that Gulabi's daughter was also residing with them. According to Zomibai, after a few days, she received a call from Nesari Police, pursuant to which, she visited the Nesari Police Station. She has identified the dead body as being of Gulabi, pursuant to which, the custody of the dead body was handed over to her for cremation. She has also identified the appellant. The said witness was cross-examined at length, however, nothing material has been elicited, to discredit her testimony. The fact remains that PW 23-Zomibai had identified the dead body of her daughter Gulabi. Zomibai's evidence also shows that the appellant had taken Gulabi with him and that they were residing at Village Waghrali.
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Station has stated that on 4th March, 2010 at about 2:00 a.m., Kasim had been to the police station along with the tempo. He has stated that Kasim disclosed that there was a dead body in the tempo and had asked him to record his FIR. He has stated that the appellant was present alongwith others and after confirming the allegations, he recorded the complaint which is at Exhibit 11. He has further stated that he called two panchas and prepared the panchnama of the gunny bag containing the dead body. The said panchanma is at Exhibit 18. He has stated that he seized two pillows and one bed-sheet from the gunny bag. The inquest panchnama (Exhibit 19) was also prepared by the said witness. It is stated in the said panchnama that the dead body was identified by the appellant as being of his wife Gulabi Pundlik Chavan. From the aforesaid material on record, it is evident that the dead body which was found in the gunny bag was that of Gulabi and as such the identity of the dead body is established.
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the Medical Officer, who conducted the autopsy. He has deposed that on 4th March, 2010, he received the dead body of a woman from the Nesari Police Station and after examining the dead body, he found the following external injuries:
“Brusis on the neck on both side more on left side. Due to thumbs on the mid-portion of neck and brusis of finger nails on both side. More brusis on the left side.
Fracture of hyoid bone seen on dissection on the region of greater comu with broken ends displaced inwards.
Abrasions over the scapular region.”
He has further stated that he noticed that the brain was congested, pleura was also congested and that there were hyperacmia in subcutaneous tissues and muscles beneath the nail-marks; that the lungs, pericardium were also congested; and that the left chamber of heart was empty, while right chamber was full of blood and congested. The probable cause of death was stated to be, “asphyxia due to throttling”. PW 18- Dr. Avinash Nalavade was cross-examined at length with regard to the manner in which the post-mortem was performed i.e. the probable time of death, etc. PW 18- Dr. Avinash Nalavade has stated in his cross-examination that
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generally in cases of throttling, the eyes are wide open and that in the present case, the eye-lids were very much swollen covering the eye-ball. He has further stated in his cross that in cases of throttling, cynapsis occurs over the entire body, however, due to passage of time, due to diversion, it may go downward. He has denied the suggestion that he recorded the cause of death as throttling, at the instance of the police.
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whereas, the post-mortem report shows that the cause of death was due to asphyxia due to throttling and that not a single stab wound was seen. It is pertinent to note, that PW 25-Asha Rathod was about 6 to 7 years at the time of her deposition. It appears that learned Judge put certain questions to the said witness, however, as she was unable to understand, no oath was administered to her. Perusal of the evidence of PW 25-Asha Rathod shows that nothing much turns on her evidence. She has stated that she was residing with her father and mother Gulabi. She has stated that when her mother died, she had gone with her in a vehicle and when she returned in the night, her father also came home, they had dinner; and thereafter, Pundlik stabbed her mother. She has stated that her father took her to his home on a scooter. She is unable to state the name of the village where she was taken, nor has she identified the appellant as her father. The said witness has stated that she was instructed by her maternal aunt and grandmother-Zomibai to depose in Court by stating the names of the persons. Considering the evidence of this child witness, we find that it is unsafe to rely on her testimony. Even otherwise, nothing much turns on her evidence.
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bag in the valley. Kasim inquired as to what was there in the gunny bag, however, the appellant was reluctant to disclose the same. He has further stated that when he prevented the appellant from throwing the gunny bag and insisted on disclosing the contents in the gunny bag, the appellant told him that his wife's dead body was there in the said gunny bag. When PW 3 – Kasim inquired further, the appellant disclosed that his wife had consumed poison and he was under an apprehension of arrest, and hence had brought the dead body. On further probing, the appellant disclosed that as his wife was not of good character, he killed her by throttling her. He has stated that the appellant requested him to save him from the incident and begged for pardon. PW 3-Kasim has further stated that he asked the appellant to get into the vehicle, saying that the bag could be thrown elsewhere and decided to proceed towards Gadhinglaj. Near Village Madalge, PW 3-Kasim's friend, Rajendra Mahadik's (PW 26) vehicle crossed his vehicle. He has stated that Rajendra called him and asked him as to where he was going, to which, Rajendra Mahadik replied that he was proceeding to Ajra for delivering sugarcane. According to PW 3-Kasim, he stopped his vehicle and asked Rajendra Mahadik to turn back and meet him. Rajendra returned with his vehicle, pursuant to which, Kasim took him
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aside and narrated the incident to him and asked him to inform the same to his friends at Gadhinglaj. He has stated that thereafter, he proceeded towards Gadhinglaj and when he reached near the School at Gadhinglaj, his friends Dipak Mang, Maruti Chougule, Shakil Nadaf and Appasaheb Magdum encircled the vehicle. He has stated that within a few minutes, Rajendra Mahadik also arrived there and thereafter, all of them took the vehicle and the appellant to the Gadhinglaj Police Station and narrated the incident. He has stated that the Police Station Officer, Gadhinglaj Police Station informed them, that it was necessary to lodge the report at Nesari Police Station, considering the jurisdictional issue and accordingly, provided one constable to escort them to Nesari Police Station. Thereafter, all of them went to the Nesari police Station, where Kasim narrated the incident, pursuant to which, a complaint/FIR was lodged with the Nesari Police Station, being Exhibit 11. Photographs of the vehicle were also taken. PW 3 – Kasim has identified the appellant.
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outposts before reaching Gadhinglaj, however, despite the same, no complaint was lodged at any of the said places. It was also contended that no calls were made to the Gadhinglaj Police informing them about the said incident. It was also sought to be contended that PW 3 – Kasim had not confirmed, the existence of a dead body in the gunny bag , after the alleged disclosure by the appellant. According to the learned Counsel, all these facts show the unnatural conduct of Kasim and as such urges that his evidence ought to be discarded. Learned Counsel for the appellant further submitted that a perusal of the 164 statement of Kasim and the evidence of DW 1 -Abdul Sattar Perampalli, who recorded the same, shows that the appellant had not disclosed to Kasim, that the dead body was of his wife and that she had consumed poison or that he had throttled her.
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facts as revealed, show that the appellant had taken on hire Kasim's vehicle to transport certain domestic goods to Sawantwadi; that before reaching Sawantwadi, the appellant got down from the vehicle, went aside and made a call and returned to the vehicle, stating that the person with whom he wanted to work, has declined to engage him and therefore, he wanted to return; that he agreed to pay an additional amount of Rs. 500/- for his return; that when he reached the ghat section at Amboli, which is a secluded spot, the appellant asked Kasim to stop near the valley, got down from the vehicle and went to the rear side; and also asked him to come to the rear side and told him that he want to throw the gunny bag in the valley; that on Kasim's persistence, disclosed to him that the gunny bag contained the dead body of his wife and that he had killed her by throttling. Kasim on learning the said fact, told the appellant that they would find a better spot to throw the body, only in order to bring the appellant alongwith the dead body back to Gadhinglaj and report it to the Police Station. The vehicle was hired at Gadhinglaj and hence, it appears that Kasim thought it fit to report the matter to Gadhinglaj Police Station. The conduct of PW 3 – Kasim in informing Rajendra Mahadik and his friends, shows the steps he took to have the appellant apprehended. Kasim got the vehicle back to
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Gadhinglaj, near a School at Gadhinglaj, where Kasim's friends encircled the vehicle and took the vehicle and the appellant to Gadhinglaj Police Station and from there to the Nesari Police Station. Merely because PW 3 – Kasim did not verify the contents in the gunny bag, does not in anyway affect the credibility of this witness. Kasim in his complaint/FIR (Exhibit 11), has set out in detail the sequence of events. The same has also been deposed by Kasim in his evidence before the Court. Kasim in his evidence has clearly stated that the appellant had disclosed to him that the gunny bag contained the dead body of his wife and that he had throttled her, as she was of bad character. It is pertinent to note, that there is no omission with regard to the same in the 161 statement, which was promptly recorded on the very same day. It appears that in Kasim's 164 statement recorded on 13th May, 2010, he has not stated that the appellant had disclosed to him, that the dead body was of his wife and that she had died due to consumption of poison or that he had throttled her. We are of the opinion, that nothing much turns on the same, as the said statement was recorded after more than 2 months of the incident. What is pertinent to note, is that Kasim in his FIR, dated 3rd March, 2010 has disclosed in detail all the said facts/details and has also reiterated the same in his evidence.
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Learned Counsel for the appellant also contended that the possibility of the gunny bag belonging to PW 3-Kasim, cannot be ruled out. He relied on certain admissions given by Kasim, that the vehicle was earlier taken on hire and on the evidence of PW 24 – Prema Chavan, daughter of the appellant, wherein she had stated that she noticed the gunny bag lying in the tempo and on making inquiries with her father (appellant ) about the same, he stated that the gunny bag was of the driver. It is pertinent to note, that PW 24 -Prema, was declared hostile by the prosecution. The reason for not supporting the prosecution, is evident from her evidence, that apart from the appellant, there was nobody to support the family and that they were facing difficulties, since the appellant was in prison. No credence can be given to the evidence of the said witness, in particular, to that part of the evidence, relied upon by the learned Counsel. Similarly, there is no material on record to show that the gunny bag was there in the vehicle prior to it being hired by the appellant.
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corroborated by the evidence of PW 27 – Maruti Chougule, who encircled the vehicle alongwith others, when it arrived near a school at Gadhinglaj. Considering the evidence on record, we are of the opinion that it was the appellant who caused the death of Gulabi, by throttling her.
(REVATI MOHITE DERE, J.) (V. K. TAHILRAMANI, J.)
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3 issues framed by the court
Whether the benefit of doubt should be given to the appellant given the material witnesses were declared hostile and the evidence was circumstantial.
Whether the prosecution has proved its case beyond reasonable doubt considering the improbabilities regarding the motive and the mode of disposing of the body.
Whether the extra judicial confession made by the appellant to the driver-cum-complainant is reliable and sufficient to sustain the conviction.
2 provisions across 1 enactments
Pundlik Basu Chavan
The State of Maharashtra
V. K. Tahilramani
Revati Mohite Dere
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
