Allowed

Anil S/O Vishwanath Pathave and Others v. the State of Maharashtra

Bombay HC2 Feb 2019APEAL/824/2015

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court acquitted the appellants of murder and concealment of a human body. The Court held that the medical evidence regarding the cause of death was doubtful and inconsistent, failing to establish a complete chain of evidence required for a circumstantial case of murder.

What did the court decide?

The judgment of conviction and sentence under Sections 302 and 201 IPC is quashed and the appellants are acquitted. Bail bonds of Appellants 2 and 3 are cancelled, and Appellant 1 is released on bail.

Anil S/O Vishwanath Pathave and Others Vs the State… — Criminal Trial and Appeal | Bombay HC (2019)

¶1

Cri. Appeal.824-15.odt

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

CRIMINAL APPEAL NO.824 OF 2015

¶4

1. Anil s/o. Vishwanath Pathave,
 Age : 34 years, Occ. ___,
 r/o. Sawargaon Pat,
 Tq. Akole,
 Dist. Ahmednagar
2. Savitrabai w/o. Vishwanath Pathave,
 Age : 55 years, Occ. ___,
 r/o. Sawargaon Pat,
 Tq. Akole,
 Dist. Ahmednagar
3. Vishwanath s/o. Laxman Pathave,
 Age : 56 years, Occ. ___,
 r/o. Sawargaon Pat,
 Tq. Akole,
 Dist. Ahmednagar..Appellants
Vs.
 The State of Maharashtra,
 Through Police Station,
 Police Station, Akole
 Taluka Akole, Dist. Ahmednagar..Respondents
----
Mr. V.D.Sapkal, Advocate for appellants
Mr. S.B.Narwade, APP for respondent
----
 CORAM : S.S. SHINDE AND
R.G. AVACHAT, JJ.
 DATE : FEBRUARY 02, 2019

¶5

2 Cri. Appeal.824-15

¶6

JUDGMENT (PER : R.G.AVACHAT, J.) :

¶7

The challenge in this appeal is to the

¶8

judgment and order dated 17.01.2009 passed by learned
Additional Sessions Judge, Sangamner, in Sessions
Case No.6 of 2006. By the impugned judgment and
order, the appellants herein (original accused nos.1
to 3) have been convicted for the offences punishable

¶9

under Sections 302 and 201 read with Section 34 of
the Indian Penal Code (“I.P.C.”, for short) and
sentenced to suffer life imprisonment and to pay a
fine of Rs.1000/- each, for the offence under Section
302 of I.P.C., whereas, for offence under Section 201
of the I.P.C., they have been sentenced to suffer
rigorous imprisonment for three years and to pay a
fine of Rs.500/- each. In case of default in payment
of fine, they have been directed to undergo simple
imprisonment for one month and fifteen days on each
count. They have, however, been let-off the offence
under Section 498-A r/w.34 of the I.P.C. The State
did not prefer appeal against acquittal.

¶10

3 Cri. Appeal.824-15

¶11

2.The facts, in brief, giving rise to the

¶12

present appeal, are as follows :-

¶13

Sitabai (deceased) had married appellant
No.1 in May, 2003. On her marriage, she started
residing along with appellant No.1 and her parents-
in-law (appellant Nos.2 and 3) at her matrimonial
home, at village Sawargaon-Pat, Tq.Akole, Dist.
Ahmednagar. On 13.11.2005 at about 07.00 a.m., the
deceased went missing from her matrimonial home. On
16.11.2005, her dead body was found floating in a
well at some distance from her matrimonial home. PW 2
– Gautam, Police Patil of village, gave report
(Exh.31) in that regard to Akole Police Station.
Based on that report, an accidental death case (A.D.)
came to be registered vide No.58 of 2005. PW 7 –
Inamdar, Assistant Sub-Inspector of Police, visited
the spot. Parents of the deceased were informed.
They came. In their presence, dead body was fished
out of the well. Inquest panchanam (Exh.27) was

¶14

4 Cri. Appeal.824-15

¶15

conducted at the spot itself with post-mortem
examination as well, since the dead body was in
highly decomposed state. PW 6 - Vedhe, Medical
Officer, opined that Sitabai died of throttling. On
18.11.2005, PW 1 - Shantabai (mother of the deceased)
lodged F.I.R. (Exh.29), alleging the appellants to
have ill-treated the deceased and ultimately,
eliminated her, as she did not conceive.

¶16

3.Based on the FIR, Crime vide (I-113 of 2005)
was registered. PW 7 – Inamdar did investigation of
the crime. He drew scene of offence panchnama
(Exh.33) and examined the persons acquainted with the
facts and circumstances of the case. On completion
of the investigation, the appellants were proceeded
against. Charge-sheet was filed before the Court of
Judicial Magistrate, First Class, Akole. Learned
Judicial Magistrate, First Class, Akole committed the
case to the Court of learned Additional Sessions
Judge, Sangamner, for trial in accordance with law.
The Trial Court framed Charge (Exh.16). The

¶17

5 Cri. Appeal.824-15

¶18

appellants pleaded not guilty. Their defence was of
false implication.

¶19

4.The Trial Court, by its first judgment and
order dated 05.09.2006, convicted the appellants for
the offences punishable under Section 302 and 201
read with Section 34 of the I.P.C. The appellants
were acquitted of the offence under Section 498-A
read with Section 34 of the I.P.C. It appears that
the appellants preferred appeal there-against. It
further appears that this Court allowed the appeal by
setting aside the judgment and order dated
05.09.2006, and remanded the matter for recording of
evidence of the Medical Officers, who conducted post-
mortem examination. The Trial Court did said exercise
and on appreciation of the entire evidence in the
case, found the appellants guilty of the offences
punishable under Sections 302 and 201 read with
Section 34 of the I.P.C. The Trial Court acquitted
the appellants of the offence punishable under
Section 498-A read with Section 34 of the I.P.C.

¶20

6 Cri. Appeal.824-15

¶21

In fact, the appellants should not have been

¶22

tried again for the offence under Section 498-A read
with 34 of the I.P.C. when they had already been
acquitted of the said charge pursuant to the judgment

¶23

and order dated 05.09.2006. The State had not
preferred appeal against acquittal. Be that as it
may.

¶24

5.In order to bring home the guilt of the

¶25

appellants/accused, the prosecution examined nine
witnesses. Dr.Shirsath was examined as Court witness
after remand of the matter.

¶26

appellants, would submit that the case was based on
circumstantial evidence. There is no clinching
evidence to indicate that the deceased met with
homicidal death. According to learned Counsel, the
impugned judgment and order is inconsistent with the
evidence in the case. The appellants ought not to
have been convicted. Learned Counsel, ultimately,
urged for allowing the appeal.

¶27

7 Cri. Appeal.824-15

¶28

7.Learned A.P.P. would, on the other hand,
submit that though the case was based on

¶29

circumstantial evidence, each and every circumstance
pointing towards guilt of the appellants, has been
established. In view of Section 106 of the Evidence
Act, the appellants owed explanation as to how the
deceased met with homicidal death. The deceased died
at her matrimonial home. Her dead body was found in a
well situated nearby her matrimonial home. No missing
person's report was lodged by the appellants. The
relations of the deceased were informed that she was
not keeping well. The conduct of the appellants was
inconsistent with their innocence. Learned A.P.P. has
supported the impugned judgment.

¶30

8.As has been observed in Sharad Birdhichand

¶31

Sarda Vs. State of Maharashtra, 1984 SC 1622, the
following conditions must be fulfilled before a case
against an accused based on circumstantial evidence
can be said to be fully established:-

¶32

8 Cri. Appeal.824-15

¶33

(i) The circumstances from which the
conclusion of guilt is to be drawn should
be fully established. The circumstances
concerned `must or should' and not `may be'
established.

¶34

(ii) 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.

¶35

(iii) the circumstances should be of a
conclusive nature and tendency.

¶36

(iv) they should exclude every possible
hypothesis except the one to be proved, and

¶37

(v) 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.”

¶38

9.The deceased married accused no.1 on
27.05.2003. After her marriage, she started residing

¶39

9 Cri. Appeal.824-15

¶40

along with the appellants, at her matrimonial home.

¶41

The deceased did not conceive. On 16.11.2005, her
dead body was found floating in the well. The village
Police Patil lodged the report regarding finding of

¶42

the dead body. Based on the report, A.D. was
registered. On arrival of the appellants and other
relations of the deceased, the dead body was fished

¶43

out of the well. Inquest panchnama (Exh.27) was
conducted. No external injuries were noticed on the
person of the deceased, might be due to highly de-
composed mortal remains. Post mortem examination was

¶44

also conducted in the field itself by PW 6 - Dr.Vedhe
and Dr.Shirsath (Court witness no.1). Admittedly, no
advance cause of death certificate was issued. Two

¶45

days after the post-mortem examination, report
thereof was issued. Post mortem report (Exh.40)
recorded the cause of death - “due to asphyxia due to
throttling”. However, Viscera was preserved for
chemical analysis. Both the Doctors had prepared
rough notes of the post-mortem examination. In rough

¶46

10 Cri. Appeal.824-15

¶47

note (Exh.61), Dr.Vedhe did not give any opinion,

¶48

whereas, Dr.Shirsath, in his rough note (Exh.67),
gave opinion that death was due to drowning. They
appeared to have come to the conclusion that it was a
case of throttling. Both these witnesses were
subjected to searching cross-examination. We need

¶49

not refer to the replies given by them to the
questions put to them during cross-examination.
Suffice it to say that both of them appeared to have
been confused as to the cause of death. A carbon copy
of the post-mortem report was also produced before
the Trial Court. In column 20 thereof, the contents
regarding fracture of laryngeal cartilage are written
in ink (interpolation).

¶50

10.The Trial Court concluded that the medical

¶51

evidence in the case was dubious. The Medical
Officers did their job in perfunctory manner. The
Trial Court, however, went on to observe “question is
whether unreliable medical evidence can be allowed to
obliterate. The same undoubtedly indicates the Trial

¶52

11 Cri. Appeal.824-15

¶53

Court to have found the expert evidence to be
unreliable one. In our view, in the facts and
circumstances of the case, the Trial Court ought not
to have observed it to be a case of homicide.
Perusal of the impugned judgment would indicate that
the Trial Court made its observation based on
conjectures and surmises. The Trial Court ruled it
out to be a case of suicide merely on the ground that
it was not the case of the prosecution and the
defence as well. In view of the Trial Court, the
deceased went missing on 13.11.2005. The appellant
did not lodge missing person's report. The dead body
was found in a well, situate at a distance of 250 ft.
from her matrimonial home. Even after finding of the
dead body, none of the appellants gave intimation to
the police. The deceased could swim well. The Trial
Court, therefore, found it to be a case of homicidal
death.

¶54

11.We are not at one with the findings recorded
by the Trial Court. The Trial Court did not rely on

¶55

12 Cri. Appeal.824-15

¶56

the evidence of the Medical Officers, who conducted

¶57

the post mortem examination. We too do not propose to
rely on the evidence of the Medical Officers, since
they are found to have not been firm about their
opinion as regards the cause of death. The dead body
was not found in matrimonial home. The appellants,
therefore, could not be called upon to state the
circumstances in which the deceased met with death.

¶58

12. PW 1 – Shantabai, mother of the deceased, testified that the appellants would illtreat the deceased since she did not conceive. It is, however, in her evidence that they belong to Thaker community. In their community, if a wife does not conceive, it is routine for the husband to contract another marriage without snapping his matrimonial tie with his first wife. PW 1 – Shantabai lodged the FIR two days after the dead body was found in the well. The report appears to have been lodged after the Medical Officers opined it to be a case of throttling. There is, therefore, every reason to observe that the

¶59

13 Cri. Appeal.824-15

¶60

report might have been lodged so as to be consistent with the post mortem report. True, PW 1 – Shantabai has testified that the deceased had been to her parental house on account of Bhaubeej (Diwali) . It was a case of few days before the death of Sitabai. Appellant no.1 had also accompanied her. It is in her evidence that appellant no.1 had quarreled with the parents of the deceased and gave threats to her (deceased) life. The F.I.R. therefore appears to have been lodged making said threats to be the basis. We are at loss for reasons as to why PW 1 – Shantabai did not lodge the F.I.R. soon after the dead body of her daughter was found.

¶61

13.It is true that the appellants did not
approach the Police Station to register a missing
person's report. There is, however, evidence (PW 2 -
Gautam) to the effect that on earlier two-three
occasions, the deceased had left her matrimonial home
and returned 2-3 days thereafter. Learned Counsel for
the appellants was right in submitting that in the

¶62

14 Cri. Appeal.824-15

¶63

given circumstances, no husband would like to report
that his wife went missing. The same also brings
ignominy to the husband. There is also evidence (PW 1
– Shantabai, mother of deceased, Exh.28) which
undoubtedly indicate that soon after the deceased
went missing, accused no.1 had been to PW 1's house
to inform that his wife had left the house and since
then, was missing. This conduct of the appellants
could not be said to be inconsistent with their
innocence. There is no other evidence to point
towards guilt of the appellants. The Trial Court,
therefore, ought not to have convicted the
appellants. Interference in the impugned judgment and
order is, therefore, called for.

¶64

14.In the result, we pass the following

¶65

order :-

¶66

O R D E R

¶67

(I) Criminal Appeal No.824 of 2015 is
hereby allowed.

¶68

15 Cri. Appeal.824-15

¶69

(II) The Judgment and Order dated 17th
January, 2009, passed by the Additional
Sessions Judge, Sangamner in Sessions Case
No.6 of 2006, thereby convicting and
sentencingAccused/Appellants–Anil
Vishwanath Pathave, Savitrabai Vishwanath
Pathave and Vishwanath Laxman Pathave for
the offence punishable under Section 302
read with 34 of the Indian Penal Code and
for the offence punishable under Section 201
read with 34 of the Indian Penal Code, is
quashed and set aside.

¶70

(III)Accused/Appellants–Anil
Vishwanath Pathave, Savitrabai Vishwanath
Pathave and Vishwanath Laxman Pathave are
acquitted for the offence punishable under
Section 302 read with 34 of the Indian Penal
Code and Section 201 read with 34 of the
Indian Penal Code. Fine amount, if deposited
as per the impugned Judgment and Order, be
refunded to Appellants/accused.

¶71

(IV) Appellant No.2 – Savitrabai W/o
Vishwanath Pathave and Appellant No.3 –
Vishwanath S/o Laxman Pathave have been
released on bail during the pendency of the

¶72

16 Cri. Appeal.824-15

¶73

Appeal. Their bail bonds shall stand
cancelled.

¶74

(V) Appellant No.1 – Anil Vishwanath
Pathave is in jail, he be set at liberty
forthwith, if not required in any other
case.

¶75

(VI)All the Appellants shall furnish
Personal Bond of Rs.15,000/- each and surety
in the like amount each, under Section 437-A
of the Code of Criminal Procedure, before
the concerned Trial Court at Sangamner.

¶76

[R.G. AVACHAT, J.][S.S. SHINDE, J.]

¶77

kbp

Anil S/O Vishwanath Pathave and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Anil S/O Vishwanath Pathave and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramratan S/O. Bhaskar Dhongade Vs the State of Maharashtra and Others

Riyaz Usman Shaikh Vs the State of Maharashtra and Others

Mohd Mohsin Mohd Yasin Vs the Principal Milind College of Science Nagsenavan Aurangabad and Another

Dipak S/O. Subhash Patil Vs the State of Maharashtra and Others

Dumya @ Lakhan @ Inamdar Shrimant Bhosale Vs the State of Maharashtra and Others

Ravindra Laxman Ghogardare Vs the State of Maharashtra and Anr.