Dalpatsiha Ganeshsiha Rajput vs The State Of Maharashtra
2012 Latest Caselaw 429 Bom

PPD

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                                                                  APEAL.217-05JUDGMENT.doc




                                                                                 
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                         
                          CRIMINAL APPEAL NO.217 OF 2005

      Dalpatsiha Ganeshsiha Rajput,                  ]




                                                        
      Convict Prisoner No.C/4882,                    ]
      Nashik Road Central Prison,                    ]
      Nashik.                                        ]  ..Appellant




                                           
                                                     [Orig.Accused]
                 Versus
                            
      The State of Maharashtra                       ] ..Respondent
                           
                                          ....
      Mrs. Sonia Miskin, Advocate (appointed) for the Appellant.
      Mrs. P.P. Bhosale, APP for the Respondent - State.
        


                                          ....
     



                               CORAM :   SMT. V. K. TAHILRAMANI, &  
                                          A. R.  JOSHI,  JJ. 

DATE : 03rd DECEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order of conviction dated 9th August, 2004 passed

by the 1st Adhoc Additional Sessions Judge, Nashik in Sessions

Case No.19 of 2004. By the said judgment and order, the

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appellant/accused was convicted for the offence punishable

under Section 302 of IPC and was sentenced to suffer

imprisonment for life and to pay fine of Rs.500/-, in default to

suffer further RI for two months. He was acquitted for the

offence punishable under Section 135 of the Bombay Police Act.

2. The case of the prosecution, in nutshell, is as under :-

The appellant/accused was working in one hotel by

name "Hotel Panchavati Yatri" at Nashik as a waiter. He left the

job on 6th October, 2003. The victim woman Pushpa Jadhav was

also working in the same hotel as a maid servant. As such, she

was in acquaintance with the appellant/accused as both were

working in the same hotel as servants. Though the

appellant/accused left the service, victim Pushpa Jadhav

continued to work in the said hotel. The actual incident of

assault occurred on the night of 18 th October, 2003. On that

night, one Dwarkabai Gaikwad another maid-servant from the

said hotel left the hotel premises after the work was over. She

was accompanied by victim Pushpa and also other two maid-

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servants. All the four women came near one Agarbatti Factory. It

was at about 11:00 p.m. or so. At that place, Pushpa departed

from the group and was alone proceeding on the road. Other

three women - including PW-4 Dwarkabai took auto and went

for their homes.

3. According to the case of prosecution when victim

Pushpa Jadhav was alone proceeding on the road, the

appellant/accused accosted and assaulted her by means of a

sickle causing severe bleeding injuries and also probably causing

instantaneous death. There were about 12 incised wounds

inflicted on her person and mainly in the area of abdomen and

chest and also on hands. After the assault, victim Pushpa fell on

the ground in a pool of blood and that time appellant/accused

started running away from the spot. At this stage, one witness

PW-6 Bhavdhya @ Sanjay Sonawane was present and witnessed

the accused running away from the spot. He along with one

Mahindra Zute chased the appellant and caught him. Prior to

that when the appellant/accused was running away, he threw

some article below the basement of one tower situated in that

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area. Apparently, from the basement of said tower subsequently

a sickle was recovered during the investigation in which PW-1

panch Prakash Jadhav took part. In fact, said sickle was

recovered as per memorandum statement of the

appellant/accused.

4. When the appellant/accused was accosted while

running away and when PW-6 Bhavdya @ Sanjay Sonawane was

taking him in a auto rickshaw to the police station with the help

of Mahindra Zute, one police jeep arrived at the scene of offence

and immediately the appellant/accused was given in custody of

the police. One police head constable Ashok Tayade (PW-7) was

present in the jeep and he took charge of the accused and took

him to the police station.

5. According to further case of the prosecution, at the

police station the appellant/accused gave a confessional

statement stating that he had assaulted victim Pushpa out of his

one-sided love affair as she has refused to marry him.

Accordingly his statement was recorded and it was treated as

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FIR regarding the assault on victim Pushpa and matter was taken

over for investigation on knowing commission of cognizable

offence through the statement given by the appellant/accused.

6. The appellant/accused was put under arrest during the

investigation of the matter as it was apparent that he was the

assailant. Clothes on his person were taken charge of. During

his search, a photograph of the victim was found. It was seized.

Panchnama was drawn in which PW-2 Rafiq Deshmukh took

part. However, this witness did not support the case of the

prosecution and turned hostile.

7. During investigation statements of various witnesses

were recorded. PW-5 one Gulam Khan was enquired and it was

revealed that from his shop about four days prior to the incident,

the appellant/accused had purchased a sickle which was

subsequently recovered at the instance of appellant/accused

from the base of a tower near the area of scene of offence. On

completion of investigation and obtaining Chemical Analyzer's

report, charge-sheet was filed against the appellant and matter

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was tried before the 1st Adhoc Additional Sessions Judge, Nashik

and ended in conviction, which is challenged in the present

appeal.

8. Prior to discussing the arguments advanced on behalf

of the appellant/accused, certain factual position is required to

be narrated in order to have proper perspective of the matter and

in order to ascertain whether the material brought before the

trial Court was sufficient enough to bring home the guilt of the

appellant/accused for the offence of murder. Said factual

position is as under :-

[i] Appellant/accused and victim Pushpa Jadhav were

working as servants in Hotel Panchavati Yatri. This is

substantiated by the evidence of PW-3 one Anant

Rikame, a Store Keeper in the said hotel. This fact is

also substantiated by another witness PW-4 Dwarkabai

Gaikwad.

[ii] Appellant/accused left the job in Hotel Panchavati

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Yatri some time on 6th October, 2003. However, victim

Pushpa Jadhav continued to work.

[iii] On the night of the incident after the working hours,

victim Pushpa Jadhav left the hotel premises along

with PW-4 Dwarkabai Gaikwad and two other maid-

servants and they departed near the place of offence

i.e. near one Agarbatti Factory.

[iv] PW-6 Bhavdhya @ Sanjay Sonawane witnessed the

later part of the entire incident. He witnessed that

victim Pushpa was shouting for help and then fell on

the ground in an injured condition and the

appellant/accused was running from the spot and

threw some article below the basement of a tower.

Appellant/accused was then accosted by PW-6

Bhavdhya and one more person by name Mahindra

Zute.

[v] PW-7 Police Head Constable Ashok Tayade arrived on

the spot in a police jeep when appellant/accused was

being taken to police station by PW-6 Bhavdhya and

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Mahindra Zute. Appellant/accused was then taken in

custody and was brought to the police station and his

statement was recorded by police officer Anilkumar

Jagtap (PW-12).

[vi] Pw-9 Dr. Bamble conducted the post-mortem on the

dead body of Pushpa and found that all the said

injuries were antemortem and also opined that such

injuries were possible by article Koyata which was

seized at the instance of the appellant/accused.

[vii] The sickle which was found at the instance of the

appellant/accused was having blood stains of "O"

group. The blood group of victim is also "O", whereas

blood group of appellant/accused is "B".

9. Now coming to the argument advanced on behalf of

the appellant/accused, it must be mentioned that there was no

much force in the said argument though it is tried to argue that

the entire case of prosecution is based only on circumstantial

evidence and that there is no eye witness in the strict sense of the

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meaning so far as actual assault on the victim is concerned. It is

further submitted that the appellant/accused had independently

approached the concerned police officer and reported to the

police regarding his knowledge as to victim found in an injured

condition on the road while he was passing by the road. When

this argument was canvassed before us, it was also submitted by

learned appointed Advocate for the appellant that the factum of

appellant/accused working in "Hotel Panchavati Yatri" and also

the factum of victim Pushpa Jadhav working in the same hotel

has not been denied. However, it is still argued that there is no

material brought on record to show that the appellant/accused

had desire to marry victim Pushpa and on her alleged refusal he

has done away with her by assaulting with the help of a sickle. It

is also argued that the substantive evidence of PW-5 Gulam Khan

do not inspire confidence inasmuch as it was not possible for the

said witness to critically remember the appellant/accused as one

of his customers for purchase of a sickle. This is more so in view

of daily 40 to 50 customers visiting his shop and that the sickle

like Article-1 also available easily in other shops, further argued.

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10. Though there is some substance in this argument

regarding quality of substantive evidence of PW-5 Gulam Khan,

still in absence of such substantive evidence and also even if PW-2

panch Rafiq Deshmukh not supported the case of prosecution,

there is ample material in order to connect the

appellant/accused with the offence of murder of victim Pushpa.

11. In our considered view, the substantive evidence of PW-

6 Bhavdhya @ Sanjay Sonawane coupled with corroboration by

way of evidence of PW-7 Police Head Constable Tayade, PW-8

ASI Ashok Fale and Police Officer Anilkumar Jagtap (PW-12), is

sufficient to point towards appellant/accused only, as the

assailant. Moreover on the another aspect also there is

corroboration through the evidence of PW-6 Bhavdhya @ Sanjay

Sonawane, inasmuch as, according to him prior to accosting of

appellant/accused, appellant/accused had threw some article

near the base of a tower near the spot of offence and from the

same place subsequently under the recovery panchnama

(Exh.24), a sickle (Article-1) was found having blood stains of

"O" blood group.

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12. In any way, considering the overwhelming material

available on record, it cannot be said that the learned Sessions

Judge had erred in coming to the conclusion of guilt of the

appellant/accused. In other words, there is nothing to interfere

with the judgment and order, and hence there is no merit in the

present appeal. Accordingly, the same is dismissed and disposed

of.

13. This judgment and order be communicated to the

appellant who is presently lodged in jail, through concerned jail

authorities.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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