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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.207 of 2016
Gangadhar Gajanan Gaurkar,
Age 35 years, Occupation - Labour,
R/o Chak Thana (Dighori Phata),
Tah. Pombhurna, Dist. Chandrapur. ... Appellant
(In Jail)
Versus
State of Maharashtra,
through Police Station Officer,
Pombhurna,
Dist. Chandrapur. ... Respondent
Shri Shantanu Deshpande with Shri A.C. Jaltare, Advocates for
Appellant.
Shri B.M. Lonare, Additional Public Prosecutor for
Respondent/State.
Coram : R.K. Deshpande & Manish Pitale, JJ.
Date of Reserving the Judgment : 20th September, 2017 Date of Pronouncing the Judgment: 29th September, 2017 Judgment (Per R.K. Deshpande, J.) :
1. The learned Additional Sessions Judge-2, Chandrapur, has convicted the appellant-accused for the offence punishable ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 2 apeal207.16.odt under Section 302 of the Indian Penal Code (IPC) and sentenced him to suffer life imprisonment and to pay a fine of Rs.1,000/-; in default, to undergo rigorous imprisonment for three months more, by his judgment and order dated 26-4-2016 delivered in Sessions Case No.38 of 2015. Hence, this appeal by the accused.
2. The story of the prosecution is as under :
PW 1 Bayabai Balki is the real sister of the accused, who reported the incident of death of her mother Shakuntala to the Police Station Pombhurna, District Chandrapur, on 6-1-2015 at about 14.30 hours. In her oral report at Exhibit 10, she stated that her brother accused Gangadhar assaulted and killed her mother, as she refused to give him money for liquor. Accordingly, the offence punishable under Section 302 of IPC was registered against the accused vide FIR at Exhibit 11. The accused was charged that in the intervening night of 5-1-2015 and 6-1-2015 at Mouza Chekthana, Tahsil Pombhurna, District Chandrapur, he committed murder, intentionally or ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 3 apeal207.16.odt knowingly, causing the death of his mother Smt. Shakuntala Gajanan Ghaurkar by assaulting her with a wooden rafter on her person and thereby committed an offence punishable under Section 302 of IPC. The charge is at Exhibit 6.
3. PW 8 is Yashant Naitam, the first Investigating Officer, who states that he went to the spot of incident with two panchas called by issuing notice under Section 175 of the Criminal Procedure Code (Cr.P.C.). The spot panchanama was prepared on 6-1-2015 between 15.00 to 15.45 hours at Exhibit 22. The dead body of Shakuntala was lying on her back having injures to her face and head. The blood was lying there, her clothes were having blood stains. The inquest panchanama was drawn at Exhibit 24 and the dead body was sent for post mortem. The accused was not on the spot and he was arrested on 7-1-2015 and the arrest form is at Exhibit 34. On the same day, the clothes of the accused were seized at Exhibit 25 in presence of two panchas. He recorded the memorandum panchanama on 13-1-2015 at Exhibit 27 between 15.15 to 15.30 hours, under ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 4 apeal207.16.odt Section 27 of the Evidence Act in presence of two panchas, one of them was PW 6 Tejraj Mankar. The accused discovered the wooden weapon Jamkud (used in the process of ploughing), kept in the compound behind his house, which was seized in presence of the panchas on 13-1-2015 between 16.05 to 16.45 hours at Exhibit 28. The photographs of the process of seizure were also taken at Exhibits 35-1 to 35-5. The blood sample of the accused was taken on 10-1-2015 at Exhibit 29. The map of the spot of incident was drawn by the Tahsildar at Exhibit 37. The weapon Jamkud was referred for the opinion of the Medical Officer under the letter dated 18-1-2015 at Exhibit 40 and the opinion on the query is dated 19-1-2015 at Exhibit 18. The further investigation was carried out by PW 9 Dilip Dolare, the Investigating Officer.
4. PW 9 Dilip, the Investigating Officer, states that he got the clothes of the deceased along with muddemal seized under the seizure memo at Exhibit 30 dated 13-1-2015, and on 6-3-2015 he forwarded the same to the Chemical Analyzer. He ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 5 apeal207.16.odt got the statements of three witnesses recorded under Section 164 of Cr.P.C. He states that in the post mortem report, there was no definite reason about the death and it opined that the death occurred due to injury to brain or poisoning. He, therefore, obtained the report of viscera at Exhibit 42 and found that the death was not due to poisoning. He sent the report to the doctor with a query and the doctor opined on 31-3-2015 at Exhibit 43 that the probable cause of death is due to sudden cardio respiratory arrest due to brain injury due to hard and blunt trauma over head. Thereafter he recorded the statements of witnesses, in which it was found that the accused demanded money to his mother for liquor and gave a blow of wooden rod on her head, which caused her death.
5. The Sessions Court records that the death of Shakuntala is homicidal. It takes into consideration the evidence of PW 3 Dr. Devendra Lade, who conducted the post mortem and submitted the report at Exhibit 17. Exhibit 18, which is a query report, is also relied upon. The Court rejects the contention of ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 6 apeal207.16.odt the accused raised, relying upon the report of the Chemical Analyzer at Exhibit 42, that the injuries were sustained to the deceased by falling down in a drunken condition. It was also pointed out to the Sessions Court that no external injury below groin up to the leg and below the neck was found. While rejecting the contention, the reference is made to the spot panchanama at Exhibit 22 and the evidence of panch witness PW 5 Zitu Sidam.
6. The Court also holds that the prosecution has proved that in the intervening night of 5-1-2015 and 6-1-2015, the accused intentionally and knowingly caused the death of his mother Smt. Shakuntalabai by assaulting her by a wooden rafter (Jamkud) on her person and thereby committed an offence punishable under Section 302 of IPC. The reliance is placed upon the evidence of PW 1 Bayabai Balki, the real sister of the accused; her oral report at Exhibit 10; the FIR at Exhibit 11; the photographs at Exhibits 12/1 to 12/12; the oral evidence of PW 2 Ankush Maraskolhe, the neighbourer;
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apeal207.16.odt PW 4 Maroti Mohurle, on the conduct of the accused, and PW 6 Tejraj Mankar, the panch witness on the discovery under Section 27 of the Evidence Act.
7. We have heard Shri Shantanu Deshpande, the learned counsel appearing for the appellant-accused. He has urged that the Sessions Court heavily relies upon the evidence of PW 2 Ankush as if he is an eye-witness to the incident and, according to him, at the most his evidence can be considered on the circumstance of 'last seen together'. He submits that there is no dispute that the accused and the deceased were the only persons at the time of incident. He further submits that the oral testimony of this witness is not corroborated by any other evidence and the conviction cannot be based upon his sole testimony. He submits that the seizure of weapon at Exhibit 27 loses its significance, for the reason that the weapon is fully described in Exhibit 22, which is the spot panchanama, even before its seizure.
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8. The learned Additional Public Prosecutor Shri Lonare supports the findings recorded by the Sessions Court and relies upon the injuries described by PW 3 Dr. Devendra and the finding recorded by the Sessions Court that it is a case of homicidal death.
9. The first question, which is required to be considered, is whether the death of Shakuntala is homicidal. PW 3 Dr. Devendra, who conducted the post mortem, opines that the probable cause of death is due to sudden cardio respiratory arrest due to brain injury by hard and blunt trauma over the head as well as due to poisoning, but the exact opinion of the cause of death was reserved up to the Chemical Analyzer's report, because viscera and blood sample were sent for chemical analysis. PW 3 finds the following injuries on the body of the deceased :
"1) Cleaned lacerated wound over the left frontal eye-brow region measuring 2 x 1 x 1 cm. Depth upto the skull bone. The fracture left the frontal lobe ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 9 apeal207.16.odt haemorrhage, measuring up to 3 x 3 cm.
2) Occipital lobe haemorrhage, measuring 4 x 3 cm.
3) Head parietal haemorrhage of 3 x 3 cm.
4) Third right rib fracture leading to right lung
ruptured bleeding to haemorrhage. Due to that left lung collapsed."
PW 3 Dr. Devendra opines that all the above injuries might have been caused by a hard and blunt object. A query report was called from this witness on 18-1-2015 at Exhibit 40 in respect of the weapon seized, i.e. Jamkud, in response to which he opines at Exhibit 18 that the "injuries received over head in PM report may be caused by this weapon". In the cross-examination, he states that column 17 in the post mortem report is about the external injuries. He denies that there were no external injuries and, therefore, he did not mention those injuries in column 17. He states that "It is true that cardio respiratory failure may occur ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 10 apeal207.16.odt due to haemorrhage fracture".
10. The Chemical Analyzer's report at Exhibit 42 in respect of viscera of deceased Shakuntala shows that it contains (103) miligrams and (90) miligrams of Ethyl alcohol per 100 grams respectively. Upon receipt of this viscera report, PW 3 Dr. Devendra finally opines that the probable cause of death is due to sudden cardio respiratory arrest due to brain injury due to hard and blunt trauma over the head, which is at Exhibit 43. The evidence of Investigating Officer PW 8 Yashwant shows that in the cross-examination, he deposed that he went to the spot and found the house to be newly constructed and the plaster was to be done. He also found that nearby the construction, the material like gitti, sand, etc., was lying.
11. In our view, with the aforestated evidence on record, it is not possible to arrive at a definite conclusion that the death of the deceased was homicidal. The opinion of PW 3 Dr. Devendra is that the probable cause of death is due to sudden ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 11 apeal207.16.odt cardio respiratory arrest due to brain injury by hard and blunt trauma over the head. On query being made with reference to the weapon seized, i.e. Jamkud, he states that the injuries on head in PM report may be caused by this weapon. He states that cardio respiratory failure may occur due to haemorrhage fracture. The deceased was aged about 60 to 65 years. The deceased was also found to be in a drunken condition. The place where she fell found to contain construction material, like gitti, sand, etc. PW 5 Zitu Sidam, a Panch witness on spot panchanama at Exhibit 22, states that construction of the house of the accused was completed and the construction material was lying there. The statement of the accused under Section 313 of Cr.P.C. is that the construction of the house was going on, the material was lying in front of the house and the deceased fell down on the material and sustained injuries. In view of such situation, it is not possible to record a definite finding that the death is homicidal. The benefit of doubt has to be given to the accused.
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12. The Sessions Court further considers the question as to whether the accused was the assaulter, who killed his mother. PW 1 Bayabai is the real sister of the accused, who resides at Ballarpur. The incident occurred at new Dighori. She states that she received the phone call from the accused stating that the mother is not acting well and, therefore, she should come immediately. She further states that the accused was saying as to whether she lives or dies, he cannot say. PW 1, therefore, started from Bhimani and reached new Dighori between 10.00 to 11.00 hours on 6-1-2015. After reaching home, she saw that her mother was lying dead having injuries everywhere on her face. She found that the accused was in a drunken condition and suspected that he might have beaten her mother because she might not have given money for liquor. She, therefore, went to Pombhurna Police Station and lodged the report at Exhibit 10. In the cross-examination, she states that the accused might have assaulted her mother. In our view, except showing motive, the evidence of this witness along with the report lodged by her, does not in any manner establish the connection of the accused ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 13 apeal207.16.odt with the crime.
13. The Sessions Court heavily relied upon the evidence of PW 2 Ankush, who claims that his house is situated after 30 feet vacant plot from the house of the accused. He states that the incident occurred on 5th of January 2015 when he returned home between 7.30 to 8 p.m., and when he was cleaning his hands and legs in the bath room, at that time the accused was coming in a drunken condition uttering something. The accused went in front of the door of his house and started calling his mother by saying "Darwaja Khol, Darwaja Khol". The accused might have opened the door and went inside. He was abusing his mother and the witness heard the sound of his mother that "Nako Maru Dada, Nako Maru Dada". After some time, the sound stopped. He claims to have heard the hick-ups of the mother of the accused. Thereafter, the witness took meals and slept. He further states in his examination-in-chief that on the next day when he returned from his job on construction work, he found the people gathered in front of his house and they were ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 14 apeal207.16.odt saying that the mother of the accused had died. The wife of the accused had gone to her maternal house two days before the incident. In the cross-examination, the witness states that he had a quarrel with the accused and was not on talking terms with him.
14. In our view, PW 2 Ankush cannot be characterized as an eye-witness, though it is so urged by the learned Additional Public Prosecutor. The accused himself in his statement under Section 313 of Cr.P.C. admits his presence in the house along with his mother. The post mortem report does not give the time of death. PW 2 acquires the knowledge of the death of the deceased in the night of 6-1-2015 after returning from his job. It is not possible to believe that PW 2 could hear the hick-ups of the deceased from such a long distance. The accused and PW 2 were not on talking terms, as PW 2 had a quarrel with the accused. It is, therefore, not possible to rely upon his sole testimony without corroboration on the aspect of what happened on the date of incident and record the finding of conviction. ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 15
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15. The reliance is placed upon the seizure memo at Exhibit 27 in respect of weapon Jamkud. PW 6 Tejraj is a panch witness on the seizure and PW 8 Yashwant, the Investigating Officer, conducted the seizure on 13-1-2015 between 16.05 to 16.45 hours. The evidence of these two witnesses and the seizure memo indicate that the accused discovered the butt of plough concealed under the Bor tree in the thorny compound on the back side of the house of the accused. It is 15 inches in length and at the center it is 7.5 inches in width. It is shown that the blood stains were found on this weapon.
16. The Sessions Court appears to have missed the important fact in Exhibit 22, which is the spot panchanama conducted on 6-1-2015 between 15.00 to 15.45 hours. In Item 4 of this spot panchanama under the head "Type of Crime", "Major Head" is shown "Janawarache Jamkud Marun". The spot panchanama itself shows the weapon used for assault on the deceased. The accused was arrested on 7-1-2015, i.e. on the ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 16 apeal207.16.odt next day after the spot panchanama. The confessionary statement under Section 27 of the Evidence Act was recorded on 7-1-2015 at 15.15 hours and discovery is at 16.05 hours. This raises a serious doubt to accept the seizure, as a circumstance in the chain of circumstances.
17. The weapon used, i.e. Jamkud, was sent to the Chemical Analyzer along with the clothes of the accused, which were seized. The blood samples of the deceased as well as the accused were taken. The blood group of the deceased as well as the accused is discovered as 'B'. The explanation furnished by the accused that he lifted his mother after she fell down, shows that the blood stains on the clothes of the accused may have occurred during the course of lifting. The reports of the Chemical Analyzer are not sufficient to connect the accused with the crime.
18. In the decision of the Apex Court in the case of Sujit Biswas v. State of Assam, reported in (2013) 12 SCC 406, it has ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 17 apeal207.16.odt been held in para 18 as under :
"18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."
Keeping in view the aforesaid law laid down by the Apex Court, it has to be held in the present case that the circumstances brought on record are not conclusive in nature so as to be consistent only with the hypothesis of the guilt of the accused. We will have, therefore, to allow this appeal by setting aside the ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:55:58 ::: 18 apeal207.16.odt conviction and acquitting the accused of the offence punishable under Section 302 of IPC.
19. In the result, the judgment and order dated 26-4-2016 passed by the learned Additional Sessions Judge-2, Chandrapur, in Sessions Case No.38 of 2015, is hereby quashed and set aside. Accused- Gangadhar Gajanan Gaurkar is acquitted of the offence punishable under Section 302 of IPC and he should, therefore, be released forthwith, if not required in any other case.
(Manish Pitale, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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