Bhau Shamrao Jogdand v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.513 OF 2016 WITH INTERIM APPLICATION NO.1748 OF 2024 [APPLICATION FOR BAIL] SATISH RAMCHANDRA SANGAR Bhau Shamrao Jogdand Age : 48 Years, Occupation : Labour, Residing at : Sanjay Gandhi Nagar ...Appellant/Applicant Zopadpatti, Pimpri, Pune.

(Original Accused) SATISH RAMCHANDRA SANGAR Date: 2025.01.15 19:04:54 +0530

Versus

The State of Maharashtra (Vide Sessions Case No.714 of 2013 arising out of C.R. No.393 of 2012 registered at Pimpri Police Station, Pune).

...Respondent

================================= Ms.Ameeta Kuttikrishnan - Advocate for Appellant/Applicant. Mr.Arfan Sait - APP on behalf of Respondent-State. ================================= CORAM : SARANG V. KOTWAL & S.M. MODAK, JJ.

DATE : 13th JANUARY 2025 ORAL JUDGMENT : (PER : SARANG V. KOTWAL, J.) 1.

The Appellant was the only accused in Sessions Case No.714 of 2013 before the Additional Sessions Judge - Pune. The learned Judge vide his judgment and order dated 31st December 2015, convicted the Appellant for the

commission of offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC"). The learned Judge sentenced the Appellant, to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only) and in default of payment of fine, to suffer rigorous imprisonment for six months.

2.

Heard learned counsel Ms.Ameeta Kuttikrishnan for Appellant/Applicant and learned APP Mr.Sait for RespondentState. 3.

The prosecution case is, that the Appellant committed murder of his wife Nandabai on 12th December 2012 at about 3.30 a.m., in their hut. According to the prosecution case, the Appellant was addicted to liquor. The deceased was working as a housemaid. She refused to give him money for liquor and on that ground, there used to be frequent quarrels between the Appellant and the deceased. In the previous evening also, there was a quarrel between them. According to the prosecution case, the Appellant, the deceased, their son and daughter were sleeping in their house. The other son was sleeping in the adjacent house of the deceased's brother. At about 3.30 a.m., the Appellant hit the deceased with a gas cylinder and crushed her head. The son and

daughter woke up because of the sound. They saw, that the deceased was lying with bleeding injuries to her head. The Appellant was holding a dumbbell in his hand and was about to assault on her head. The son who was present in the house, stopped him. The daughter went out and called her other brother who came inside the house. Others were also called. One of the sons lodged the FIR at Pimpri Police Station vide C.R.No.393 of 2012. The investigation was carried out. The Appellant was immediately arrested. His clothes were seized. The clothes of the deceased were seized. The spot panchnama was conducted. The post mortem was carried out. The statements of the witnesses were recorded. On completion of the investigation, the charge-sheet was filed and the case was committed to the Court of Session.

4.

During the trial, the prosecution examined 13 witnesses including the two sons and the daughter of the Appellant, his brother-in-law, panchas, photographer, medical officer and the police witnesses. The defence of the Appellant was of total denial. He did not offer any explanation or did not take up any specific defence. Learned Judge after considering the entire evidence, believed the witnesses and convicted and sentenced the Appellant as mentioned earlier.

5.

The FIR is lodged by PW No.1-Appa Bhau Jogdand, who has deposed, that the Appellant was his father and the deceased was his mother. He had a brother and a sister. The mother was working as maid servant. His father was a carpenter but since August-2012, he was not doing any work. He used to sit idle in the house and consume liquor or watch T.V. The Appellant often used to pick-up quarrel with the deceased and ask her to give money for buying liquor. He used to beat the deceased. The informant and his brother and sister used to intervene. The incident occurred at about 3.30 a.m., on 12th December 2012. At that time, his brother and sister along with their parents were present in the house. He had gone to sleep in the adjacent house belonging to his maternal uncle. At about 3.30 a.m., he heard shouts of his brother and sister.

He immediately woke up and went to his house. He saw, that his mother was lying on the ground in a pool of blood. She had sustained bleeding injury on the head. When, he entered the house, the Appellant came out of the house. His brother and sister told him, that the Appellant had killed their mother with iron dumbbells and gas cylinder. PW No.1-Appa and his uncle shifted the deceased to YCM Hospital-Pimpri but she was declared dead. After that, he lodged his FIR against his father.

It is produced on record at Exhibit-11.

In the cross-examination, he deposed, that he used to tell his maternal uncle about the ill-treatment given to his mother by his father. But, they had never lodged any complaint against their father. The maternal uncle's house had two big rooms and 8 persons used to stay in it. On 11th December 2012, he had returned home at around 9.00 p.m. At that time, he had seen his father in the house. At about 10.00 p.m., he went to his maternal uncle's house. The distance between the two houses were about 50 feet and there was only one partition in between those houses. Both the houses were constructed jointly. He could hear the sound from one house if, he was in the other. Their house stood in the name of his father i.e. the Appellant. There is one omission from his FIR in respect of the Appellant leaving the house when PW No.

1 entered the house at 3.30 a.m. He could not explain as to why, that fact was not mentioned in his FIR. He was given specific suggestions that some dacoits had entered their house and while committing dacoity, since his mother resisted, she was assaulted. This suggestion was denied by PW No.1.

6.

The FIR produced on record at Exhibit-11, substantially corroborates his deposition.

7.

The evidence of PW No.1 is supported on all the material particulars by PW No.5-Parmeshwar Waghmare who was his maternal uncle. He was present in the adjacent room with PW No.1 when the incident occurred. He had narrated the incident in the similar manner. After hearing the shouts, when he entered the Appellant's house, he had seen, that his sister had sustained bleeding injury to her head and was lying unconscious. PW No.1's brother and sister had held the Appellant who was having a dumbbell in his hand. There was a gas cylinder kept near the sister. In the cross-examination, some suggestion about somebody trying to commit a dacoity in the house and in the process, the deceased having sustained injuries was put to him which he had denied.

8.

PW Nos.2 and 4 are important witnesses. Both of them were present in the house, when the incident took place. PW No.2-Maya Jogdand was the sister of PW No.1 and the Appellant's daughter. She has deposed about the Appellant's addiction to liquor and about his unemployment since about 4 months prior to the incident. She has deposed that he used to demand money for liquor from his wife and on her refusal, he used to assault her. The Appellant also used to threaten to cause death of wife, if the money was not paid to him. He used

to abuse and threaten her. PW No.2 and her brothers used to intervene.

On 11th December 2012, in the evening, the deceased came home after purchasing some household articles. The Appellant asked for money but she refused. She cooked food and all of them had dinner and they went to sleep. PW No.1 went to sleep in his maternal uncle's house. At about 3.30 a.m., she heard shouts, she woke up. She saw, that her mother had sustained bleeding injury on her head. She noticed, the gas cylinder. She has specifically deposed, that the Appellant lifted the gas cylinder and threw it on the head of the deceased. He also assaulted the deceased with dumbbells. By that time, PW No.2 and her brother Prakash caught the Appellant. She herself went out of the house and called her elder brother PW No.1Appa. Then, the deceased was shifted to the hospital.

In the cross-examination, she deposed, that her mother had not lodged any complaint against her father. There was a minor omission from the police station about her mother purchasing some household articles and returning home on 11th December 2012. However, she has answered that she did not witness the incident of assault on her mother by gas cylinder.

commit the murder of her mother.

9.

PW No.4-Prakash Bhau Jogdand is another important eye witness who was the other son of the Appellant. He has narrated the history of the quarrel between his parents. At about 3.30 a.m., in the midnight, he heard some sound. He woke up. His sister Maya also woke up. They saw, that their mother had sustained bleeding injury on the head. One gas cylinder was kept by her side. She was writhing in pain. He himself and PW No.2 raised shouts. Their father again lifted the gas cylinder and was about to assault their mother but by that time, PW Nos.2 and 4 intervened and stopped him. Even then, the Appellant picked up dumbbells and assaulted their mother. By that time, PW No.2 went out and brought their brother PW No.1. Their maternal uncle also came to the spot. Some other neighbours gathered there. He identified the gas cylinder and the dumbbell produced in the Court as Articles 'A' and 'B'.

His cross-examination did not elicit any answer favourable to the defence. There was hardly any important omission from his police statement. He stuck to his story and was not shaken in the cross-examination. He also denied the suggestion that some unknown person while committing

dacoity had committed this act. PW No.4 is thus, an important witness and we find him to be a truthful witness. 10.

PW No.3-Bhujang Shyamrao Gaikwad was panch for spot panchnama. The panchnama was produced at Exhibit14 which shows that the gas cylinder and dumbbell were found at the spot. They were seized. The bloodstained earth and bedsheets were also taken from the spot.

11.

PW No.7-Sunny Babarsing Kandare was the panch in whose presence, the clothes of the accused were seized under panchnama which is produced at Exhibit-30. PW No.8Parshuram Bhagwan Raut was panch in whose presence, clothes of the deceased were seized under panchnama at Exhibit-35.

12.

PW No.9-Mukesh Machhindra Kamat was another important witness. He was a neighbour and he had rushed to the house on hearing the shouts. More importantly, he has deposed about the quarrel between the Appellant and his wife which had taken place about 8.30 p.m., before the incident at 3.30 a.m., in the night. He had personally witnessed that quarrel. The Appellant was demanding money for consuming liquor which was the cause for quarrel. After the incident, he immediately rushed to the spot. He had seen, that the deceased

had sustained head injury and the Appellant's son and daughter had caught the Appellant. He had also seen the Appellant holding dumbbells in his hand. In the crossexamination, he deposed, that he did not intervene in the quarrel between the Appellant and the wife. He denied the suggestion that he was deposing false.

13.

PW No.10-Sharad Gorakhnath Kshetriya was photographer. He had taken the photographs of the spot and of the dead body. The photographs are produced on record. PW No.11-Manohar Ramchandra Lodhe was the scientific assistant who had helped in collecting the samples. PW No.12-Gorakh Keru Theurkar was a carrier. He had carried the samples to the forensic laboratory.

14.

PW No.6-Milind Vasant Sonawane was the medical officer. He had carried out the post mortem examination. The deceased had suffered following two injuries:- (i) Sub-conjunctival Haematoma over left eye, swelling of both eye lids, bluish, due to contusion, swelling extends over left orbit and cheek, pale bluish, size 10 cm x 9 cm.

(ii) Depressed compound injury over right forehead, stating from mid glabella, involving whole right forehead, up till right side of eye, margins

lacerated and gaped, underneath frontal bone avulsed deppressed fracture, exposing intracranial cavity fracture margins depressed, fracture right Maxxila bone, vertically, fissure type, size 8 cm x 4 cm x Intra-cranial, cavity deep. The internal injuries shown, there was fracture of nasal bone, there was huge extravasation of blood in sub-cutaneous tissue. The cause of death was mentioned as "traumatic and haemorrhagic shock due to deppresed fracture of skull with brain injury due to head injury due to heavy blunt object. The medical officer deposed that the said injuries were possible if the domestic gas cylinder either empty or filled is hit on the head and the injuries were also possible by weight lifting dumbbells.

15.

PW No.13-Mohan Shrirang Sawant-Dy.S.P., was attached to Pimpri Police Station as Assistant Police Inspector. He has conducted the investigation. He had carried out spot panchnama, had seized the articles, had sent the body for post mortem examination. The Appellant was arrested by Police Sub-Inspector, Mr.Shaikh. PW No.13 had filed the chargesheet. His cross-examination is not of much consequences. This, in short, is the evidence led by the prosecution. The

accused did not raise a specific defence except taking up the defence of total denial.

16.

Through the suggestions, it was projected, that an unknown person had entered the house for committing dacoity and in the process, that unknown person had committed the murder. This suggestion was denied as mentioned earlier. 17.

Learned counsel for the Appellant submitted, that the evidence of sons, the daughter and the brother-in-law of the Appellant is not consistent. They have falsely implicated the Appellant because of the earlier quarrel between the Appellant and his wife. She submitted, that there was no motive for the Appellant to commit the murder of his wife. She further submitted, that even if, assuming that the incident had occurred and even if, assuming that the Appellant had assaulted the deceased, there was no premeditation and preparation in committing the offence. The evidence shows, that there was a quarrel between the deceased and the Appellant. The incident is the result of that quarrel and therefore, the offence would not be the one under under Section 300 of the IPC but would be a lesser offence as there was no intention to commit the murder. She relied on the judgment of Hon'ble Supreme Court in case of K. Ravi Kumar

V/s. State of Karnataka1.

18.

Learned APP opposed these submissions. According to him, there was no reason to disbelieve the eye-witnesses. He submitted, that the Chemical Analyzer's reports show that the blood on the clothes of the accused was of group 'A' whereas, his own blood group is 'O'. Therefore, the Appellant had the deceased's blood on his clothes. This factor is not explained by him. He submitted, that the incident was not a result of the quarrel but the quarrel had taken place at least 6 hours prior to the incident. It shows, that it was a preplanned, cold-blooded murder.

19.

We have considered these submissions. The FIR is lodged by PW No.1 as mentioned earlier. PW No.1 and PW No.5 have corroborated each other in respect of the events which took place after 3.30 a.m. After they heard the sound, both of them rushed to the house of the Appellant and to see the Appellant at the spot with the deceased lying on the floor with bleeding injuries. PW No.1 has immediately lodged the FIR.

20.

More importantly, there are two important witnesses, PW No.2 and PW No.4 who were present in the (2015) 2 Supreme Court Cases 638

house when the incident took place. Though, they were sleeping separately, from the Appellant and his wife, on hearing the shouts, they immediately woke up and actually saw, that the deceased was lying with the bleeding head injury and the Appellant was about to assault her with a dumbbell. He was prevented from causing any more damage but at that time, the head of the deceased was crushed with the gas cylinder. The photographs show that the cylinder was lying nearby and it had blood stains. The gas cylinder and the dumbbells were identified in the Court as mentioned earlier. Their evidence is consistent and it has stood the test of cross-examination. They are the main witnesses who are corroborated by PW No.1 and PW No.5. Apart from them, PW No.9 is also important. He was a neighbour. He had seen the quarrel at about 8.00 p.m. He had rushed to the spot after the incident and had seen the accused holding the dumbbells. All these witnesses are consistent with each other and point unerringly to the guilt of the Appellant.

21.

We do not find force in the submissions of the learned counsel for the Appellant, that it was not a case of murder but it could be a lesser offence, as the case would fall within Exception 4 to Section 300 of IPC. Her reliance on K.

Ravi Kumar's case (supra) is also misplaced. In that case, immediately after the heated exchange, the incident had taken place as the appellant in that case, had lost his mental balance. But, in the present case, there was a long gap between the quarrel and the incident. The quarrel had taken place about 8.00 p.m., and the incident had taken place at 3.30 a.m. Therefore, it was not a direct result or outcome of the quarrel. In fact, the Appellant had sufficient time to ponder over his actions and only after a gap of 6 hours, he took this extreme step of crushing head of the deceased with the cylinder. The offence was committed in a cruel manner. Therefore, Exception 4 to Section 300 of IPC will not come to the aid of the Appellant in the submission made on his behalf that the offence could be a lesser offence and not that of a murder. 22.

Considering all these aspects, we do not find any merit in the Appeal. The Appeal is accordingly, dismissed. 23.

In view thereof, the Interim Application stands disposed of.

(S.M.MODAK, J.) (SARANG V. KOTWAL, J.)