1 Appeal146-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.146 OF 2016
...
Pandurang Chindhu Aagle,
Aged about 65 years,
Occupation: Cultivator,
R/o Goregaon, Tahsil Goregaon,
District Gondia. .. APPELLANT
.. Versus ..
State of Maharashtra,
Through its Police Station Officer,
Goregaon, Police Station Goregaon,
District Gondia. .. RESPONDENT
Mr. Amit Kukday, Advocate (Appointed) for Appellant.
Mr. S.A. Ashirgade, Additional Public Prosecutor for
Respondent.
....
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 28, 2017
PRONOUNCED ON : October 4, 2017.
JUDGMENT (per Manish Pitale, J. )
The appellant herein has been convicted and sentenced for life imprisonment under Section 302 of the Indian Penal Code (IPC) for the murder of his son, wife and ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 2 Appeal146-16.odt daughter-in-law. The appellant has been found guilty mainly on the testimony of his granddaughter (PW1).
2. As per the prosecution story, the appellant was living with his wife and son Channalal as also daughter-in-law and their children in one part of the house at Goregaon in district Gondia. In the other half of the house, the elder son of the appellant was residing. PW1 Pooja, the granddaughter of the appellant, had come with her sister to stay during the vacation with her maternal uncle Channalal (son of the deceased) for about a month.
3. On 12.05.2014, PW1 Pooja was sleeping in the Chhapari (courtyard) of the house and at about 5 a.m. the appellant came with a Ghan (iron hammer) and upon entering the house, he assaulted his son Channalal on his head and further assaulted his wife and daughter-in-law with the iron hammer thereby seriously injuring all the three. It is further alleged that the appellant poured kerosene on his wife and daughter-in-law and set them on fire by lighting a match stick. Thereafter, the appellant walked out of the house where PW2 Raghunath, a neighbour, met him and to whom the appellant confessed about the aforesaid act committed by him. It is also ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 3 Appeal146-16.odt alleged that PW4 Urmilabai, another neighbour living in a house adjacent to the said house where the incident occurred, saw the appellant standing at the door of the house having an iron hammer in his hand. It is further alleged that the injured persons were taken to the hospital where all three of them died.
4. The first information report (FIR) pertaining to the said incident was registered on the same day at about 5.45 a.m. on the complaint of PW1 Pooja. PW9 Ravindra Shinde, Police Inspector, the investigating officer in the present case, reached the spot of the incident and prepared the spot panchanama. PW6 Dr. Atul Patil conducted the post mortem on the dead bodies, which revealed severe external and internal injuries to the deceased persons.
5. The appellant was arrested and upon his memorandum under Section 27 of the Evidence Act being executed, the iron hammer was recovered from under the "Diwan" (bed) and seizure memo regarding same was executed on 13.05.2014. The investigating officer (PW9) completed the investigation and submitted charge sheet against the appellant. It was brought on record during ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 4 Appeal146-16.odt investigation that the daughter-in-law of the appellant had given a statement to PW3 Ashok, Head Constable, in the hospital giving description of the incident. Before recording the said statement, an endorsement was taken from the Medical Officer regarding fitness of the said victim for giving such statement and it was claimed by the investigating officer that such statement dated 12.05.2014 was a dying declaration.
6. The prosecution examined nine witnesses to prove its case and reliance was placed on the evidence of the eyewitness PW1 Pooja as also the depositions of the neighbours PW2 Raghunath and PW4 Urmilabai along with the said dying declaration dated 12.05.2014 and the medical evidence on record. The Sessions Court found the evidence of PW1 Pooja as also the evidence of the aforesaid neighbours as sufficient to bring home the guilt of the appellant. The Sessions Court relied upon the seizure of the iron hammer and the chemical analysis report to hold that there was sufficient material on record proving the guilt of the appellant. Accordingly the Sessions Court convicted and sentenced the appellant under Section 302 of the IPC.
7. Mr. Amit Kukday, learned counsel appointed for the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 5 Appeal146-16.odt appellant submitted that the evidence of PW1 Pooja was not reliable because it was improbable that she could have witnessed the entire sequence of events from the courtyard. It was further submitted that there was no statement in her evidence regarding who opened the door of the house facilitating the entry of the appellant and further that the evidence of PW1 Pooja was contradicted by the so called dying declaration dated 12.05.2014 of the deceased daughter-in-law of the appellant. It was further submitted that the dying declaration was not believable because the time recorded in the endorsement of fitness given by the Doctor was over written. It was further submitted that the description of the incident by PW1 Pooja did not match with the map of the house at Exh.40 showing the positioning of the three victims of the assault. It was submitted that the evidence was full of contradictions and that therefore, the impugned judgment and order of the Sessions Court deserved to be set aside.
8. On the other hand, Mr. S.A. Ashirgade, learned Additional Public Prosecutor appearing on behalf of the respondent-State, submitted that as there was an eyewitness to the incident and the medical evidence corroborated such evidence, the conviction and sentence imposed upon the ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 6 Appeal146-16.odt appellant was justified and that the appeal was required to be dismissed.
9. We have heard the learned counsel for the parties and we have perused the record. We find that PW1 Pooja is the only eyewitness to the incident, as the neighbours PW2 and PW4 claimed to have seen the appellant outside the house where the incident took place. The other witnesses are pertaining to the alleged dying declaration of the daughter-in- law of the appellant, the panch witnesses for the seizure memo, spot panchanama, the Doctor as regards medical evidence and finally the investigating officer. 10 A perusal of the map of the spot of the incident (Exh.40) gives the location of the front courtyard where PW1 Pooja was sleeping and then the three rooms of the house located one behind the other and finally the backyard of the house. If the evidence of PW1 Pooja is analysed in the context of the aforesaid map, it appears doubtful that she would have witnessed the entire incident from the front courtyard. As per the version of PW1 Pooja, she woke up on hearing the cries of the daughter-in-law of the appellant. She claims to have seen the appellant giving blow of iron hammer on the head of his ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 7 Appeal146-16.odt son Channalal and then he allegedly poured kerosene on his wife and daughter-in-law and set them on fire. The map (Exh.96) on record shows that the wife of the appellant was assaulted in the backyard and that the daughter-in-law was in the last room leading to the backyard and that the son of the appellant was assaulted in first room upon entering the house. It is not stated by PW1 Pooja as to who opened the door of the house facilitating the entry of the appellant for carrying out the said assault. It is also not clear how PW1 Pooja could see what was happening in the backyard from the place where she was sleeping i.e. the front courtyard. At this juncture a comparison with the description of the same incident in the alleged dying declaration (Exh.14), assumes importance. This is because in the said alleged dying declaration given by the daughter-in-law of the appellant, it is stated that she had gone to the toilet in the backyard and when she came out, her father-in-law i.e. the appellant came into the house with the iron hammer in the hand and assaulted her. This version of the incident would place the daughter-in-law in the backyard, as opposed to the version of PW1 Pooja, wherein she has claimed that the wife of the appellant was in the backyard and not the daughter-in-law. The description of the incident in the two versions is clearly contradictory.
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8 Appeal146-16.odt 11. Apart from this, the alleged dying declaration
(Exh.14) shows that under the signature of the Medical Officer endorsing the daughter-in-law of the appellant being fit to give a statement, the time recorded has been overwritten. It appears that 8.45 a.m. has been overwritten as 6.40 a.m. This is perhaps because the police report forwarded with the dead body for post mortem examination of the daughter-in-law of the appellant (Exh.47) records that she died at 8.10 p.m. This clearly renders the said alleged dying declaration (Exh.14) as an extremely dubious document. Thus, apart from the fact that the version in the dying declaration contradicts the version of PW1 Pooja, the said alleged dying declaration is inherently unreliable and it cannot be believed.
12. The evidence of the two neighbours PW2 Raghunath and PW4 Urmilabai shows that they saw the appellant outside the house and only PW4 says that he was having hammer in his hand. In this situation, the crucial evidence to connect the appellant with the said incident of assault is the recovery of the iron hammer and its chemical analysis report. A perusal of the spot panchanama (Exh.18) dated 12.05.2014 shows that there is no mention of the iron hammer. The seizure memo pursuant ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 9 Appeal146-16.odt to the statement of the appellant under Section 27 of the Evidence Act shows the recovery of the iron hammer. This document (Exh.25) records that the iron hammer is recovered from beneath the Diwan (bed) and that it is stained with blood. The same was sent for chemical analysis by requisition (Exh.50). By this document 31 exhibits were forwarded for chemical analysis including the iron hammer and the clothes of the appellant. The iron hammer is recorded at Exh.27, while the clothes of the appellant i.e. underwear and baniyan are shown as Exhs. 28 and 29. The said document records that at Exh.27 iron hammer with wooden handle is forwarded, but there is no mention of blood stains on the same.
13. The chemical analysis report dated 11.07.2014 (Exh.53) shows that no blood was detected on Exh.27 i.e. the iron hammer. In the said report, Exhs. 28 and 29 are not even mentioned as regards any blood stains or otherwise. Thus, neither the clothes allegedly worn by the appellant at the time of the incident nor the iron hammer allegedly used by him to carry out the assault, are found to have any blood stains. There is nothing to connect the appellant with the use of the iron hammer to carry out the assault. This aspect of the evidence assumes significance, in view of the contradictions in ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 10 Appeal146-16.odt the versions of the incident given by PW1 Pooja and the alleged dying declaration (Exh.14).
14. In the statement given by the accused under Section 313 of the Cr.P.C., it is stated by the appellant upon his wife and daughter-in-law quarreling with each other, his son beat up both of them, burnt them and then injured himself with the iron hammer and that the appellant was falsely implicated. As there is absence of any evidence of blood stains on the clothes of the appellant and the iron hammer allegedly used by him in the assault, this statement of the appellant-accused under Section 313 of the Cr.P.C. becomes relevant.
15. We have already referred to the version of PW1 Pooja appearing doubtful when analysed in the context of the map of the spot of the incident (Exh.40) because the positioning of the victims in various parts of the house and the manner in which the assault was allegedly carried out, all appear to be doubtful. The evidence of PW2 Raghunath and PW4 Urmilabai does not really corroborate the description of the incident by PW1 Pooja. Therefore, their version only shows the presence of the appellant at the spot of the incident. In fact, the appellant himself has not disputed his presence because in his statement ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 11 Appeal146-16.odt under Section 313 of the Cr.P.C., in response to the question as to what he had to say regarding statement of PW2 Raghunath that the appellant was present in front of the house, he has stated that "it is correct". Thus, the appellant has not disputed his presence, but, at the same time it is for the prosecution to prove the fact that the appellant was responsible for the incident in question by placing on record convincing evidence.
16. The manner in which the alleged dying declaration (Exh.14) has been tampered with by overwriting of the time recorded under the endorsement given by the Medical Officer and the inherent contradictions between the Exh.14 and the evidence of PW1 Pooja, renders the evidence relied upon by the prosecution as doubtful. The evidence of the witnesses also does not show as to who extinguished the fire in which the wife and daughter-in-law were engulfed. The neighbours i.e. PW2 and PW4 claimed to have reached the spot immediately after the incident, but, they also do not make any reference to this aspect, which renders their versions doubtful. The Sessions Court has heavily relied upon the evidence of PW1 Pooja to hold that the appellant was guilty. The Sessions court has referred to the chemical analysis report, but, it has failed to appreciate that the said report does not show any ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:03:52 ::: 12 Appeal146-16.odt material to connect the appellant with the use of the iron hammer for carrying out the assault on the three victims. Although the manner in which the victims have been assaulted is ghastly, the evidence on record falls short of proving that it was only the appellant who was responsible for the same.
17. In view of the above, we hold that the Sessions Court was not justified in convicting and sentencing the appellant under Section 302 of the IPC. Accordingly, we allow this appeal and set aside the impugned judgment and order dated 01.06.2015 passed by the Sessions Court and we acquit the appellant of the charges levelled against him. The appellant be released from custody forthwith, if not required in any other case. The amount of fine, if any paid, be refunded to the appellant.
18. The fees of the learned counsel appointed for the appellant are quantified at Rs.5000/- (Rs. Five Thousand only).
(Manish Pitale, J. ) (R.K. Deshpande, J.)
...
halwai/p.s.
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