Pralhad Tukaram Kharatkar vs The State Of Maharashtra
2015 Latest Caselaw 200 Bom

    PNP                            1/13                               Apeal166-21.8

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE      JURISDICTION




                                                                        
                    CRIMINAL APPEAL NO.166 OF 2009




                                                
    Pralhad Tukaram Kharatkar
    Age 36 years, Occu : Driver,
    R/o. Pavnegaon, Navi Mumbai,
    Dist - Thane,
    (At present detained at




                                               
    Thane Central Prison)                                ..Appellant.

          versus

    The State of Maharashtra                             ..Respondent.




                                         
                                        .....
    Ms. Sarojini Upadhyay, advocate appointed for the Appellant.
                          
    Mrs. A.S. Pai, Addl.P.P. for the Respondent - State.
                                        .....
                                     CORAM : SMT. V.K. TAHILRAMANI &
                         
                                              A.S. GADKARI, JJ.

                                          21st August, 2015.

    JUDGMENT (PER A.S. GADKARI, J.) :

The Appellant has challenged the judgment and order dated 2 nd

January, 2009 passed by the Additional Sessions Judge, Thane in

Sessions Case No.303/2006 thereby convicting the Appellant for an

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay fine of

Rs.5,000/-, in default of payment of fine to further undergo simple

imprisonment for six months.

2. The facts which are necessary to decide the present Appeal can

briefly be stated as under :

The Appellant is the husband of the complainant (P.W.1) Rekha

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Kharatkar. The Appellant and P.W.1 - Rekha were residing together

along with their two sons viz. Pritesh aged 11 years and Yatish aged

about 9 years. Pritesh was studying in 6 th standard and Yatish was

studying in 4th standard in Tilak Education Society, Vashi. The

Appellant was a tempo driver. That one Janardan Patil from village

Nelje was friend of the Appellant and he used to visit his house. The

Appellant had suspicion about illicit relation of Janardan Patil with his

wife Rekha (P.W.1). The Appellant used to beat his wife - complainant

Rekha and his sons Pritesh and Yatish. That the accused was

suspecting the chastity of his wife Rekha and was saying that the

younger son Yatish was not his son and was a son begotten to Rekha

from Janardan Patil. On that count he used to beat Yatish and Rekha.

On 7th June, 2006 at about 8.00 a.m. the Appellant beat complainant

Rekha and abused her, whereupon Rekha told him, not to suspect on

her chastity and may not beat her and her son. She also told the

Appellant to pay back the money taken from Janardan Patil. On her

said saying the Appellant again beat her. On the same day i.e. on 7 th

June, 2006 at about 11.30 a.m. the Appellant had his lunch and then

took both his sons for the school. At about 1.30 p.m. he came back

home. There were bloodstains on his shirt. On enquiry he informed

the complainant that he committed murder of Yatish on a road which

goes to the creek from the Nursery at Koparkhairne. After hearing the

same, complainant Rekha immediately rushed to the school in search

of Yatish and found that he was not in the school. Therefore she went

PNP 3/13 Apeal166-21.8

to the road which goes to the creek from Nursery at Koparkhairne and

took search thereon. She found dead body of Yatish having injury on

his forehead, ear, head and other parts of the body and those were

bleeding. She immediately rushed to the police station and lodged a

complaint against the Appellant. The said complaint i.e. F.I.R. is at

Exhibit 11.

3. An offence came to be registered against the Appellant bearing

C.R. No.I-260 of 2006 under Section 302 of the Indian Penal Code with

Turbhe Police Station, Navi Mumbai. PSI Suresh Mallav (P.W.14)

recorded the complaint of Rekha. He then along with his superior

officer visited the spot and prepared spot panchanama (Exhibit 32)

and attached earth smeared with blood and six stones having

bloodstains on it, inquest panchanama (Exhibit 57). He then arrested

the Appellant by effecting arrest panchanama (Exhibit 34). He then

sent the dead body of Yatish for conducting postmortem. Further

investigation was carried out by Sr. P.I. Shinde. He recorded the

statement of other witnesses. That on 9 th June, 2006 the accused gave

disclosure statement and in pursuance thereof showed the spot where

the school bag of deceased Yatish was thrown by him. The said school

bag was recovered under panchanama (Exhibits 41 and 42).

Muddemal articles were sent to Chemical Analyser for analysis.. The

C.A. reports which are at Exhibits 51 and 52 were received during the

course of investigation.

PNP 4/13 Apeal166-21.8

4. P.W.10 - Dr. Bhushan Jain conducted the postmortem on the

dead body of Master Yatish and the said report is at Exhibit 39. Dr.

Bhushan Jain while performing autopsy of Master Yatish noticed the

following external injuries on the body of Master Yatish :

"1. C.L.W. over left forehead 3 x 2 cm, bone deep reddish.

2. C.L.W. over left temporal region 5 cm. Above ear 5 x 2 cm. Cavity deep, brain substance oozes out.

3. C.L.W. Over left temporal region 2 x 1 cm. Bone deep

reddish, 1 cm above ear.

4. Abrasion contusion over left maxillary region 3 x 1.5 cm.

Reddish.

5. Abrasion over nose all over on right side involving C.L.W. 3

x 1 cm. Muscle deep, reddish.

6. C.L.W. Over right temporal region 1 cm. Above ear 2 x 1 cm. Bone deep reddish.

7. C.L.W. Over right side of the face near tratues 1 x 1 cm,

muscle deep, reddish.

8. Abrasion contusion over right side of the neck laterally involving pinna of the ear 7 x 4 cm, reddish.

9. C.L.W. Over right upper lip up to cheek 3.5 cm. Muscle deep, reddish.

10. Abrasion over right thigh anteriorly 6 x 3 cm. Reddish."

On internal examination, he noticed the following injuries which are

mentioned in column No.19 of the postmortem report :

"1. On head, haemorrhage under scalp all over.

Skull :- Multiple depressed communated fractures of left fronto-parieto-tempo-occipital bones extending into bone.

PNP 5/13 Apeal166-21.8

2. Depressed fractures of right temporal bone extending into bone.

3. Brain : Infiltration staining of blood seen at the fractured

margins meninges lacerated brain matter - lacerated."

5. Dr. Jain also found stomach contains of about 100 cc. of semi-

digested whitish Bhakari (rice) like food material. He opined the cause

of death is head injury. He further opined that the injuries in column

No.17 of the postmortem report are possible by hard blunt and heavy

object.

6.

After completion of the investigation, charge-sheet came to be

filed against the Appellant in the Court of competent jurisdiction.

7. The Judicial Magistrate First Class, Vashi committed the said case

to the Court of Sessions at Thane in pursuance of the provisions of

Section 209 of the Criminal Procedure Code. After committal the Trial

Court framed charge against the Appellant for an offence punishable

under Section 302 of the Indian Penal Code below Exhibit 3. The said

charge was read over and explained to the Appellant to which he

pleaded not guilty and claimed to be tried. His defence was of total

denial. According to the defence of the Appellant, his wife Rekha had

illicit relations with Janardan Patil, who had given him a threat to kill

along with his son. He contended that Janardan Patil might have killed

Yatish. As per the statement of the Appellant recorded under Section

PNP 6/13 Apeal166-21.8

313 of the Criminal Procedure Code, on the date of the incident at

about 1.00 to 1.30 p.m., complainant Rekha had called him on phone

and told that Janardan has committed murder of Yatish near Nursery

near the creek. Therefore, he had gone to the spot and took out the

dead body of Yatish and kept it on the road. That before he reached

to the police station the complainant went and lodged a complaint

against him and thus, he has been falsely implicated in this case. In

support of its case the prosecution examined in all 15 witnesses. The

prosecution filed a pursis dated 4 th October, 2008 below Exhibit 62

thereby placing on record the fact that the prosecution has closed its

evidence. The Appellant thereafter in support of his defence examined

two witnesses viz. Kisan Ladkar (D.W.1) and Kashinath Chowdhary

(D.W.2).

8. The learned Trial Court after recording the evidence of the

witnesses and after hearing the parties to the said case has convicted

and sentenced the Appellant by its impugned judgment and order

dated 2nd January, 2009 as stated herein above.

9. The present case is based on circumstantial evidence and also

on the extra-judicial confession given by the Appellant to his wife

Rekha (P.W.1). It is settled position of law that in a case of

circumstantial evidence the circumstances on which the prosecution

relies must be consistent with the sole hypothesis of the guilt of the

PNP 7/13 Apeal166-21.8

accused. In case of resting on circumstantial evidence, it is

incumbent for the prosecution to prove each and every circumstance

on which it proposes to rely. The circumstances so proved should be

of conclusive nature i.e. they should have a definite tendency of

implicating the accused. The circumstances so established should

form a complete chain which should exclude every hypothesis of the

innocence of the accused and unquestionably point towards the guilt

of the accused. In other words the circumstances should be conclusive

i.e. accused and the accused alone has committed the crime.

10. The learned counsel for the Appellant submitted that the conduct

of P.W.1 in the present case is not natural. That there are material

omissions in her testimony. She further contended that in view of the

defence taken by the Appellant since beginning, this is a case of false

implication. She further contended that the person against whom the

motive revolves viz. Janardan Patil has not been examined by the

prosecution. She therefore urged before us that the present Appeal

may be allowed.

11. Per contra, the learned APP supported the impugned judgment

and submitted that the entire chain of circumstances has fully been

established by the prosecution and therefore, there is no need to

interfere with the conviction of the Appellant. She therefore prayed

that the present Appeal may be dismissed by sustaining the conviction

PNP 8/13 Apeal166-21.8

of the Appellant.

12. In the present case, P.W.1 Rekha in her testimony has stated that

the Appellant is her husband. They got married in the year 1994 and

had two sons viz. Pritesh aged 11 years and Yatish aged 9 years.

Pritesh was studying in 6th standard and Yatish was studying in 4th

standard in Tilak Education Society at Vashi, Sector No.28, Navi

Mumbai. The Appellant was working as a tempo driver. One Janardan

Patil was a friend of the Appellant and was residing at village Nelje.

That on 7th June, 2006 at about 8 a.m. her son Pritesh had gone for

tuition. At that time, the Appellant quarrelled with her and then

remained quiet. That the Appellant used to quarrel with her by

suspecting on her chastity. At 11.30 a.m. the Appellant took both the

sons Pritesh and Yatish with him to leave them in the school. At about

1.30 p.m. the Appellant came back home. Rekha (P.W.1) enquired with

him whether he left children in school to which the Appellant replied

that he reached one son to school and the another has been killed.

P.W.1 found bloodstains on the shirt and collar of the Appellant. She

then went running to the school and asked the peon of the school to

show her sons. Her elder son Pritesh was in school, but Yatish was not

there. She then rushed to the Nursery creek at Koparkhairne, the

place which was informed to her by the Appellant as the place of

murder of Yatish and found the dead body of her son Yatish at the spot.

She noticed many bleeding injuries on his person and there were

PNP 9/13 Apeal166-21.8

stones near the dead body. She then went to the police station and

lodged a complaint. P.W.1 has further stated that the Appellant was

suspecting on her chastity. The Appellant was suspecting that Yatish

was not his son and he was the son from Janardan Patil and therefore,

the Appellant committed the murder of Yatish. In the cross-

examination of this witness she has admitted that the allegation that

the accused was quarreling with her by suspecting that Yatish was son

from Janardan Patil is true. She has further admitted that when Yatish

was born she was not knowing Janardan Patil. Apart from the aforesaid

admissions in the lengthy cross-examination, no material has been

elicited at the instance of this witness.

13. P.W.7 - Pritesh Kharatkar is the elder son of P.W.1 and the

Appellant. P.W.7 in his testimony has stated that at the time of

incident, he was studying in 6 th standard and Yatish was studying in 4 th

standard. That his father was working as a tempo driver. That his

father used to abuse and beat his mother everyday. The Appellant

used to drink liquor and was beating him and his brother. That

Janardan used to come to his house with his father and they used to

drink liquor in the house. P.W.7 - Pritesh has further deposed that on

7th June, 2006 at about 11.00 a.m. his father asked him and Yatish to

prepare for school and thereafter they started going with his father to

the school. They reached at the gate of the school. At that time, his

father (Appellant) told him to go ahead and that the Appellant will

PNP 10/13 Apeal166-21.8

bring Yatish afterwards. He thereafter started going to the school and

saw to his back that the Appellant was beating Yatish. That at about

1.30 p.m. the peon of the school came to his classroom and told that

his mother has come to the school. Therefore, he came on the ground

floor with the peon and met his mother. His mother asked him about

Yatish and then he told her that father had taken Yatish back and was

beating him. In the cross-examination of this witness no material has

been extracted which would help the Appellant.

14.

P.W.5 Ashok Kamathe is the peon of the school where Pritesh and

Yatish were studying who corroborates the version of P.W.7 - Pritesh

and has further stated that the student from 4 th class was not present

on that day. That after the mother met the student from the 6 th

standard, she started crying and went away. P.W.4 - Ganesh Bhoir is

the clerk from the said school i.e. Tilak Education Society, who further

corroborates the version of P.W.7 and P.W.5 to the extent that on 7 th

June, 2006 at about 1.30 p.m. the mother of Pritesh and Yatish came to

the school and told him that she wanted to see whether her sons had

arrived in the school. He thereafter called the peon and asked him to

do the needful.

15. P.W.3 Gopinath Dalvi is a person who at the request of police

took out a school bag from the creek. This witness has identified the

school bag which is Article 9 on record. The said school bag has also

PNP 11/13 Apeal166-21.8

been identified by P.W.1 Rekha. P.W.11 - Suresh Gaikwad is the panch

witness to the recovery of school bag of Yatish at the instance of the

Appellant which was taken out by P.W.3 from the creek and also panch

to the spot shown by the Appellant. P.W.1 Rekha has also identified

the bag and other articles which were in the school bag.

16. P.W.2 Namdeo Madhavi is the father of P.W.1 and this witness has

disclosed about the motive in committing the present crime by the

Appellant. P.W.6 is Baban Thakur who is the watchman who was

posted at the gate of the creek in which the school bag of Yatish was

thrown by the Appellant. This witness has failed to identify the

Appellant in the identification parade as the person who on 7 th June,

2006 at about 1.00 p.m. came out from the municipal gate of the

creek.

17. P.W.9 Ramji Yadao is a panch witness to the arrest panchanama

and seizure of clothes of the Appellant which were stained with blood.

P.W.14 Suresh Mallav is the police officer who recorded the First

Information Report and also recorded the inquest panchanama. P.W.15

Hanumant Pawar is the Investigating Officer who submitted the charge

sheet in the present crime after completion of the investigation.

18. As stated earlier the Appellant has examined two defence

witnesses viz. Kisan Ladkar, a Police Head Constable then attached to

PNP 12/13 Apeal166-21.8

A.P.M.C. Police Station, Vashi and Kashinath Chowdhary, Police Sub-

Inspector attached to Turbhe Police Station. These two witnesses have

deposed about the N.C. complaint filed by the Appellant against

Janardan Patil on 29th March, 2006 and 23rd August, 2006 respectively.

It appears to us that these defence witnesses lead the Appellant

nowhere and they do not in any manner help the Appellant from

creating the doubt in the mind of this Court about the evidence led by

the prosecution in support of its case.

19.

Thus, after taking into consideration the entire evidence on

record, it is clear that the Appellant was last seen in the company of

Yatish by P.W.1 Rekha, the mother of Yatish and wife of the Appellant

and also by P.W.7 Pritesh, the elder son of the Appellant who saw the

Appellant taking Yatish back from the school gate and the Appellant

was beating Yatish at that time. There is another strong circumstance

against the Appellant in the form of extra-judicial confession given to

P.W.1 Rekha, the wife of the Appellant immediately after commission of

the crime. The school bag of Yatish which was thrown by the Appellant

in the creek was recovered at his instance in presence of panch

witness viz. Suresh Gaikwad (P.W.11) and the said bag was taken out

by the swimmer viz. Gopinath Dalvi (P.W.3). The said school bag has

been identified by P.W.1 including the articles therein. The Chemical

Analyser's report demonstrates that the shirt and pant of the Appellant

which were seized in the presence of P.W.9 Ramji Yadao were having

PNP 13/13 Apeal166-21.8

bloodstains of human origin and of 'A' group. It is further to be noted

here that stone which was found on the spot of incident with

bloodstains was also having the blood of human origin of group 'A'. So

also the half shirt and half pant of deceased Yatish were found stained

with blood of human origin of 'A' group. The Appellant in his

statement recorded under Section 313 of the Criminal Procedure Code

has not given any explanation about the bloodstains on his clothes and

therefore in view of the C.A.'s report a safe inference can be drawn

that the bloodstains found on the clothes of the Appellant were of

deceased Yatish.

20. The chain of circumstances in the present case in our view is

complete and it excludes every hypothesis of the innocence of the

Appellant and unquestionably points finger towards the guilt of the

Appellant. In view of the above, we are of the opinion that the

prosecution has fully established the chain of circumstances which

lead to the only hypothesis that the Appellant and the Appellant alone

has committed the present crime.

21. In view of the above, we are of the considered view that there

are no merits in the present Appeal and the Appeal is accordingly

dismissed.

    (A.S. Gadkari, J)                         (Smt. V.K.Tahilramani, J.)