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05JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.750 OF 2005
[THROUGH JAIL]
Aadinath Rambhau Garje, ]
Convict No.C/13811, ]
presently confined at ]
Yerawada Central Prison, ]
Yerawada, Pune - 411 006.
ig ] ..Appellant
[Orig.Accused No.1]
Versus
The State of Maharashtra ] ..Respondent
_________________
WITH
CRIMINAL APPEAL NO.1318 OF 2004
[For enhancement of sentence]
The State of Maharashtra ] ..Appellant
[Orig.Complainant]
Versus
Aadinath Rambhau Garje, ]
Age about 35 years, Occ. Labour, ]
Residing at Surdhi, Tq. Aashti, ]
Dist. Beed, Bodhegaon, ]
Tq. Shevgaon,Dist. Ahamadnagar] ..Respondent
[Orig.Accused No.1]
....
Mrs. B.P. Jakhade, Advocate (appointed) for the appellant in
Cri.Appeal No.750/2005.
Mrs. Shilpa Gajare - Dhumal , APP for the Respondent - State
and for the appellant in Criminal Appeal No.1318/2004.
....
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05JUDGMENT.doc
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE : 04th DECEMBER, 2012 JUDGMENT: [PER A. R. JOSHI, J.]
1. Heard rival submissions on both the appeals which are being disposed of by this common judgment and order as both the appeals are arising out of the judgment and order of conviction of appellant/orig.accused No.1 in Criminal Appeal No.750 of 2005. Original accused No.1 (i.e. appellant in Criminal Appeal No.750/2005) was convicted for the offence punishable under Section 302 of IPC and was also convicted for the offence punishable under Section 307 of IPC. On each count, he was sentenced to suffer life imprisonment and fine of Rs.500/- in default SI for one month. Said judgment and order was passed by the 6th Additional Sessions Judge, Pune vide order dated 5th March, 2004 in Sessions Case No.157 of 2003.
2. By the said judgment and order, original accused No.2 one Satyabhama Jadhawar was acquitted of both the charges i.e. offence punishable under Section 302 of IPC and also punishable 2 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 3 APEALS.1318-04 & 750-
05JUDGMENT.doc under Section 307 of IPC. Against the acquittal of said accused No.2, there is no appeal preferred by the State. The State has preferred Criminal Appeal No.1318 of 2004 for enhancement of punishment given to accused No.1 and as such challenged the impugned judgment and order dated 5th March, 2004.
3. Original accused No.1 Aadhinath Garje filed Criminal Appeal No.750 of 2005 challenging the judgment and order of conviction. In view of all this factual position, both the appeals are taken up for hearing and disposed off by this common judgment and order.
4. The case of the prosecution, in nutshell, is as under :-
Accused No.1 Aadinath married with victim Mangal and out of the said wedlock the couple had one daughter by name Sharada (PW-1) and one son by name Dnyaneshwar. At the time of the incident i.e. on or about 21 st March, 2003 said Sharada was about 11 years of age, whereas Dnyaneshwar was 8 years of age. In the incident which happened at early hours of 21st January, 2003, victim Mangal and also son Dnyaneshwar 3 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 4 APEALS.1318-04 & 750-
05JUDGMENT.doc were drowned in the river Indrayani near village Dehu, District -
Pune. In fact during that incident daughter Sharada (PW-1) was also drowned in the river. This act was done allegedly by both the accused i.e. Aadinath Garje & Satyabhama Jadhwar.
5. After the marriage and having two children, as mentioned above, accused No.1 was staying along with his family at Prabhu Vadgaon village, Taluka -Shevgaon, District -
Ahmednagar. However, later on he got job as a Supervisor on the agricultural field belonging to one Vitthal Maharaj at village Bodhegaon, Taluka - Shevgaon, District - Ahmednagar, and as such after getting such job, he used to visit place of his wife Mangal and his two children at village Prabhu Vadgaon.
6. It is also the case of prosecution that at the place of his work at Bodhegaon, accused Aadinath had developed relations with accused No.2 Satyabhama and they were staying as husband and wife and it was known to his wife Mangal and said Mangal had disclosed it to her elder daughter PW-1 Sharada.
7. According to the case of prosecution, on 19th January, 4 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 5 APEALS.1318-04 & 750-
05JUDGMENT.doc 2003 accused No.1 came to Prabhu Vadgaon and told Mangal and his children that all of them would be going to pilgrimage at Dehu. He took his family members and brought them to Shevgaon and thereafter asked them to proceed further in a bus upto Pathardi and further told that he himself would come along with Satyabhama at Pathardi bus-stand. Accordingly they all met and started going towards Pune and reached Dehu on 20 th January, 2003 in the morning. On that entire day, they had deity darshan and also took meals and rested overnight under the tree within the precincts of the temple. On the next day i.e. on the fateful day of 21st January, 2003 early morning they all got up.
On the pretext of taking holy bath in the river, accused No.1 took his wife Mangal and his two children to the river bed.
Satyabhama also accompanied them. At that place, accused and Satyabhama gave push and in fact drowned Mangal and Dnyaneshwar in deep water. They also threw PW-1 Sharada in water. Apparently Sharada was alert and she succeeded from getting drowned. She escaped said danger of drowning by catching hold of some tree in the river bed. Seeing her attempt 5 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 6 APEALS.1318-04 & 750-
05JUDGMENT.doc to escape the death, accused pelted stones on her due to which she received severe bleeding injuries on her head. However, she pretended as if she had drowned in the water and then ultimately escaped the threat of drowning. Unfortunately this did not happen with two other victims i.e. Mangal and Dnyaneshwar and both of them died due to drowning in the water. Their dead bodies were subsequently found.
8. Also according to the case of prosecution after such ghastly attack on his own family members, accused No.1 left the spot along with accused No.2 Satyabhama and subsequently went to Alandi and took shelter in one Ashram/Math and stayed there on the night of 21st January, 2003. In the meantime, Sharada succeeded to come out of the river bed and informed the nearby persons who had gathered near the river and were preparing some food. Sharada was having bleeding injuries to her head. She was shivering probably due to cold water and also due to deadly incident she had just undergone. Noticing her condition, she was helped by the persons gathered on the bank of river. She narrated the information to them taking the name 6 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 7 APEALS.1318-04 & 750-
05JUDGMENT.doc of her father and mentioning the entire incident, also taking the name of accused No.2. Thereafter she was taken to hospital for immediate medical help. Subsequently her complaint was recorded by the police and treated as FIR (Exh.11).
Investigation was started, so also search for both the accused was conducted. On revealing through the complainant that they were to visit Alandi, trap was led at Alandi and search was conducted in different religious chaultries (dharamshalas) and it was revealed that both the accused had taken shelter at Alandi in a chaultry and their presence was witnessed by PW-11 Dnyaneshwar Batule. So also their presence was witnessed by one PW-10 Smt. Sushma Sugvekar at Dehu in the afternoon of 20th January, 2003. As such during the investigation, revealing the whereabouts of both the accused they were arrested from Alandi on 22nd January, 2003. During their arrest, panchnama was conducted in which PW-14 one Khaja Shaikh took part and in that arrest panchnama clothes on the persons of both the accused were also taken charge of.
9. During the investigation, after obtaining the 7 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 8 APEALS.1318-04 & 750-
05JUDGMENT.doc postmortem reports of two dead bodies i.e. Mangal & Dnyaneshwar and after recording the statements of relevant witnesses, the charge-sheet was filed and the matter was committed to the Court of Sessions and it ended in conviction of accused No.1 and acquittal of accused No.2. Said conviction is challenged by the State asking for enhancement of punishment and also challenged by accused No.1 asking for acquittal.
10. It must be mentioned that the entire case of prosecution revolves around the substantive evidence of PW-1 Sharada, then aged about 11 to 12 years - a school going daughter of the victim and accused No.1. Her substantive evidence has not been shaken in any way during the cross-
examination, as observed by us. Moreover there is corroboration to her evidence by way of substantive evidence of PW-3 one Lala Rathod. According to this witness he and his other associates assisted Sharada in getting some food and protection from cold and according to this witness, she narrated the entire incident and taken the names of accused and further mentioned that her mother Mangal and her brother had drowned in the river and 8 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 9 APEALS.1318-04 & 750-
05JUDGMENT.doc they were missing.
11. Evidence of Sharada is also substantiated by the substantive evidence of PW-4 Rajendra Chavan & PW-5 Baban Pande. PW-4 is one Rajendra Chavan a shop-keeper selling chewing pan and tobacco etc... He after noticing the condition of Sharada tried to take her to medical treatment as she has sustained severe bleeding injuries to her head. That time PW-5 Baban Pande assisted PW-4 and suggested that he would go to the police station and lodge formal report, whereas Rajendra Chavan shall take the girl to the hospital for treatment.
Admittedly Sharada was admitted in the hospital and was examined by Dr. Babita Kamlapurkar (PW-12) and she found injuries which are detailed as under :
(1) C.L.W. on the scalp of the size of 8 x 1 x ½ cm. skull bone exposed, bleeding present, site parieto occipital region.
(2) C.L.W. of 1 x ½ x ½ cm on parietal region right side.
12. Apart from the evidence of PW-1 Sharada, there is substantive evidence of PW-7 one Balasaheb Dalhal running STD 9 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 10 APEALS.1318-04 & 750-
05JUDGMENT.doc booth at Alandi. According to this witness, two accused made calls from his booth at 3:00 p.m. on 21st January, 2003 and he produced the bill for the said calls and gave it to the investigating machinery. Said bill was recovered under the panchnama in which PW-8 Gajanan Sable took part.
13. On this aforesaid piece of evidence, it is argued on behalf of the appellant in Criminal Appeal No.750/2005 that said witness Balasaheb Dalhal (PW-7) was not present at the booth when allegedly both the accused made telephone calls, moreover there is no identification of these accused by the said witness. Further more it is submitted that making of call from the said STD booth at Alandi is not per se an incriminating circumstance against the accused. There is some substance in this argument, in our view. However, the substantive evidence of said PW-7 Balasaheb Dalhal and also panch witness PW-8 Gajanan Sable goes to show that, at least, there was presence of two persons one male and one female making telephone calls from the STD booth. Otherwise also if this circumstance is not taken shelter of, the other material available against 10 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 11 APEALS.1318-04 & 750-
05JUDGMENT.doc appellant/accused No.1 is of such a overwhelming character that there is no escape for accused No.1 from the punishment inflicted on him, more so when there is substantive evidence of his own daughter Sharada and also the substantive evidence of PW-11 Dnyaneshwar Batule from a chaultry at Alandi.
According to this witness, both the accused took shelter in the said chaultry on the night of 21st January, 2003 and they slept together on the roof top of chaultry though they were asked not to sleep together. Also according to PW-11 on that night both the accused were found in some objectionable position while sleeping with each other and they were censored by the staff of chaultry not to indulge in such type of activity in the pias place of dharmashala and they were asked to vacate the place.
Apparently the police searching party in the process of finding the whereabouts of both the accused had visited this dharmashala and recorded the statements of PW-11 Dnyaneshwar Bhagule.
14. Considering the effect of the substantive evidence of prosecution witnesses as mentioned above and mainly that of 11 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 12 APEALS.1318-04 & 750-
05JUDGMENT.doc PW-1 Sharada, in our considered view there is nothing to interfere with the impugned judgment and order so as to acquit the appellant/accused No.1 in Criminal Appeal No.750/2005.
15. Now, coming to the argument advanced on behalf of the State in the matter of Criminal Appeal No.1318/2004 for enhancement of the punishment given to accused No.1, it is submitted on behalf of the State that it is a case of double murder committed by accused No.1 that also at a religious place at Dehu. It is further argued that act of accused No.1 is so heinous in throwing river his own wife and both the children of tender age that he do not deserve punishment lesser than death penalty. On this aspect arguments of learned Advocate for accused No.1 are heard. In our considered view, considering the parameters as to requirement of rarest of rare case to inflict the penalty of death, the present matter is not an apt case to attract the death penalty. In other words, still considering the special circumstances in the present matter under which the wife and both the children were thrown in the river to die by accused No.1 and thereby causing death of wife and one son, in our view 12 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 13 APEALS.1318-04 & 750-
05JUDGMENT.doc the life imprisonment awarded on both counts i.e. for the offence punishable under Section 302 for murder of Mangal and Dnyaneshwar, and life imprisonment awarded for the offence punishable under Section 307 for attempt to commit murder of Sharada, is sufficient deterrence.
16. In view of the above, there is no merit in the appeal preferred by accused No.1, so also the circumstances do not warrant granting of appeal preferred by the State for enhancement. In the result, both the appeals stand dismissed.
Appellant-accused No.1 be intimated the present judgment and order through the concerned jail authorities.
17. At this stage, we wish to place on record our appreciation for the way in which Mrs. B.P. Jakhade, learned appointed Advocate appearing for the appellant/orig.accused No.1 has conducted the matter. She was thoroughly prepared with the matter and she has very ably argued the matter. We quantify her fees to be paid by the High Court Legal Services Committee, Bombay at Rs.2500/-(Rupees Two Thousand Five 13 / 14 ::: Downloaded on - 09/06/2013 19:27:35 ::: 14 APEALS.1318-04 & 750-
05JUDGMENT.doc Hundred Only). The same to be paid to the learned Advocate Mrs. B. P. Jakhade within a month from today.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.) 14 / 14 ::: Downloaded on - 09/06/2013 19:27:35 :::