Bombay High Court
Aadinath Rambhau Garje vs The State Of Maharashtra on 4 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
PPD
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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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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.)
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