HAUSAJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Sometimes, we wander as to how a man could be so cruel to kill his near and dear ones. Here is the case where the present appellant - original accused No.1 alleged to have murdered his wife, son and daughter. He challenges his conviction by learned Additional Sessions Judge, Biloli on 18/10/2016 in Sessions Case No.39 of 2015 for the offence punishable under Sec. 302 of Indian Penal Code. He has been sentenced to suffer imprisonment for life and to pay fine of Rs.25,000.00 in default to suffer simple imprisonment for two years.

(2.) Before we proceed to take the assessment of the case, it will not be out of place to mention here that the charge-sheet was filed against in all seven accused persons and it was for the offence punishable under Ss. 302, 498-A read with Sec. 109 of Indian Penal Code. Original accused Nos.2 to 7 have been acquitted of all the charges, whereas the present appellant - original accused No.1 has been acquitted of the offence punishable under Sec. 498-A, 109 of Indian Penal Code. The charge has been framed at Exhibit-38, but we have found that the charge is defective. For triple murder, the charge is framed in a consolidated way i.e. in one line it is stated that the accused has committed murder of wife, daughter and son. It is the cardinal principle that for each distinct offence, there should have been separate charge. That means for murder of each person, there ought to have been a separate charge as against the appellant. Therefore, we can say that the gravity of the offence has been lessened due to such consolidated charge, however, though the charge is defective, now this Court being the Appellate Court cannot set it right, as at any point of time, the prosecution has not raised any objection. Same is the case as regards the operative order. For each distinct offence, after holding the accused committing murder of his wife, daughter and son, no separate punishment has been awarded. Thus, it can be again said that the gravity and seriousness of the offence has been diluted by the learned Additional Sessions Judge himself. It appears from the submissions at the time of hearing the accused on the point of sentence that the prosecution was heard. Even at that point of time also, learned APP has not taken pains to consider the charge that was framed. He prayed for death sentence, but never attempted to place on record the evidence in respect of aggravating circumstances. The guidelines in Macchi Singh and others Vs. State of Punjab, [1983 AIR 957] and Bachan Singh Vs. Union of India and others, [(1980) 2 SCC 684] were not followed at all. The prosecution in this case has not filed any appeal under Sec. 377 of the Code of Criminal Procedure being aggrieved by the punishment for the murder of three persons and still sentencing accused No.1 to undergo imprisonment for life. Under the said circumstance, this Court need not get the compliance done as per Manoj and others Vs. State of Madhya Pradesh, [(2023) 2 SCC 353] and Vikas Chaudhary Vs. The State of Delhi, [2023 DGLS (SC) 450] : 2023 (4) JT 517]. Ultimately, what stands for consideration/reassessment and scrutiny in this appeal is the conviction of accused No.1 for the offence punishable under Sec. 302 of Indian Penal Code for which he has been awarded imprisonment for life.

(3.) The prosecution story in short is that P.W.2 Raosaheb Bhaurao Sawant, resident of Waghalwada, Taluka Umri, District Osmanabad lodged report with Dharmabad Police Station on 21/6/2015. He has stated that his younger sister Kalpana was married to original accused No.1 (hereinafter referred to as the "accused") about 10 years prior to the FIR. They had daughter Durga aged 8 years and son Rama aged 5 years on the date of FIR. The marital life of accused and Kalpana was good till 7 to 8 years after the marriage, however, two years prior to the FIR, the accused got addicted to liquor. He used to assault Kalpana and children by consuming liquor daily. It is alleged that the other accused persons used to instigate accused and harass her, however, in view of their acquittal, we would like to not to infer to the acts and the evidence as against the other accused persons. So also, we do not want to take note of the allegations attracting under Sec. 498-A of Indian Penal Code even as against the accused, as he has been acquitted. The informant has alleged that he had taken accused to Shirpur, District Buldhana to give him treatment for de-addiction. The husband and wife i.e. Kalpana and accused stayed there for about 3-4 days and returned to Karegaon on 20/6/2015. Durga and Ram were with Raosaheb at Waghalwada and, therefore, on the request of accused and Kalpana, he left the children to Karegaon around 10.00 to 11.00 a.m. on 20/6/2015. He received phone call around 7.00 a.m. on 21/6/2015 from Uttam i.e. brother of accused stating that accused is not opening the door of his house. They are hearing the shouts from inside. After the said phone call, Raosaheb and his wife P.W.3 Anita went on motorcycle to Karegaon and they broke open the door of the house of accused with the help of villagers. After they entered the house, they saw that accused was sitting by holding stone in his hand. They then saw Durga's dead body on the grain bag in the front room and dead body of Ram was found on the mattress near Durga's dead body. They both had sustained severe injuries. The found dead body of Kalpana near the wall. A tile was kept below her neck. She had sustained injury to her head and it was appearing that she has been throttled. They found chilly powder sprinkled in the house. People caught accused and gave intimation to police. Raosaheb came to know from the villagers that shouts were heard from the house of accused around 12.00 mid-night to 1.00 a.m. It is alleged that none of the other accused persons had helped the deceased persons to come out. On the basis of said FIR, offence was registered vide Crime No.71 of 2015 and investigation was taken up. Inquest panchanamas were carried out and dead bodies were sent for postmortem. Panchanama of the spot was executed. Accused came to be arrested. The clothes of the accused as well as deceased persons came to be seized. Statements of witnesses were recorded and after completion of investigation, charge-sheet was filed.