Bombay High Court
Pradeep S/O Raibhan Gaikwad (In ... vs The State Of Maharashtra, Through ... on 26 July, 2016
Bench: B.R. Gavai
1 apeal584.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.584/2014
Pradeep s/o Raibhan Gaikwad,
aged about 46 years, Occ. Scrap Dealer,
R/o Udasa, Tq. Umred, Dist. Nagpur.
At present Undergoing Sentence
at Central Prison, Nagpur.
Tq. Dist. Nagpur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station, Officer, Police Station,
Umred, Dist. Nagpur. ...RESPONDENT
-----------------------------------------------------------------------------------------------
Mr. A. B. Moon, Advocate for appellant.
Mr. C. A. Lokhande, A.P.P. for respondent-State.
-----------------------------------------------------------------------------------------------
CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JULY 26, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The present appeal is directed against the judgment and
order of conviction passed by learned Additional Sessions Judge,
Nagpur in Sessions Case No.487/2011 dated 24.04.2014 whereby
the appellant is convicted for the offence punishable under Section
302 of the IPC for committing murder of Mayabai and is directed to
suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-,
in default to suffer rigorous imprisonment for one year. He is also
convicted for the offence punishable under Section 302 of the IPC for
2 apeal584.14.odt
committing murder of Nandabai and is directed to suffer
imprisonment for life and to pay a fine of Rs.5,000/-, in default to
suffer rigorous imprisonment for one year. The appellant is also
convicted for the offence punishable under Section 323 of the IPC
and is directed to suffer rigorous imprisonment for one year and to
pay a fine of Rs.200/-, in default to suffer rigorous imprisonment for
seven days. He is also convicted for an offence punishable under
Section 506 (ii) of the IPC and sentenced to suffer one year
imprisonment and to pay a fine of Rs.200/- in default to suffer
rigorous imprisonment for seven days. He is also convicted for an
offence punishable under Section 309 of the IPC and on that count
he is further directed to to suffer rigorous imprisonment for one year
and to pay a fine of Rs.200 and in default to suffer rigorous
imprisonment for seven days. It was further directed that the
sentences shall run and commence one after another.
2. The prosecution case as it is disclosed during the course of
the trial is as under:
(a) Madhukar Gite (PW13) was discharging his duties as
Police Inspector at Police Station, Umred. On 05.07.2011 in the
midnight, Suresh Gupta (PW2) and his son Sunil Gupta (PW8) came
3 apeal584.14.odt
to Police Station for lodging the report. They informed the police
offices that they were assaulted by one Dhanraj Jadhav. The police
officer noticed injuries on his person and, therefore, he took them
with him for medical examination to Nagpur. While proceeding to
Nagpur, they went to the house of Dhanraj Jadhav at Udasa. There,
Dhanraj Jadhav was present in the house. Thereafter, Madhukar Gite
(PW13), Suresh Gupta (PW2), Sunil Gupta (PW8) and Dhanraj
Jadhav went to the house of Suresh Gupta at Udasa. There he
observed blood in the doorstep of the house. Madhukar Gite made
enquiry with Rajni (PW7) wife of Suresh Gupta. She narrated that
Pradip Gaikwad (appellant) who is residing in front of the house of
Suresh, has made assault on Suresh and Sunil. Therefore, Madhukar
Gite and others went to the house of the appellant. He noticed that
the front door was closed. Therefore, they entered from the back
door to notice that a lady was lying on a cot, blanket was placed on
her person, her moth was gagged by putting knicker inside the
mouth. PI Gite also noticed an iron pipe lying there with blood
stains. He called the neighbours who revealed him the identity of the
lady as wife of the appellant. He also gathered information that the
brother of the wife of the deceased Mayabai by name Ankush Patil
(PW6) resides at the bye pass, Umred. His house was searched and
4 apeal584.14.odt
he was brought to the house of Mayabai, the deceased. Thereafter
search of the appellant was started.
(b) During the search at about 3.45 a.m. PI Gite received a
phone call from one Police Constable that one Nandabai Bankar who
resides at Ghodimar layout is murdered by the appellant. He along
with Ankush (PW6) went to Ghodimar layout. There they found
Nanda Bankar in dead condition on the road. One knife was also
found near her body. Mother of Nandabai by name Shantabai and
her daughter Shubhangi (PW5) were also present near her.
Shantabai was injured. On enquiry with Shantabai and Shubhangi
(PW5), it was informed to PI Gite (PW13) that at about 3.30 a.m. the
appellant had been to the house of Nandabai Bankar and told them
that Mayabai, the sister of Nandabai had a snake bite and she is
admitted in the rural hospital. The appellant asked them to
accompany to the hospital. Therefore, they proceeded towards the
rural hospital, Umred. After they crossed some distance from their
house, in the open place, the appellant caught Nandabai and
assaulted by means of knife on her chest. When tried to intervene in
the assault, he also made assault on Shantabi and gave a threat to kill
Shubhangi.
5 apeal584.14.odt
(c) During the search, appellant Pradip Gaikwad was found
near the well and observing the police vehicle, he jumped into the
well. He was rescued from the well. He informed the police officers
that after committing murder, he had consumed the rat poison.
Therefore, the appellant was sent for medical treatment in the
hospital.
(d) In the meanwhile, Ankush Patil (PW6) lodged his oral
report Exh.-18 and on the basis of the same, the crime was registered
against the appellant vide Crime No.77/2011 on 06.07.2011 at
7 O'clock in the morning for an offence punishable under Section s
302, 307 and 309 of the IPC. The printed FIR is at Exh.19.
(e) The inquest was done on the dead body of Mayabai by PSI
Mankar (PW16). The inquest panchanama is at Exh.-74. The spot
panchanama where the dead body of Mayabai was found was also
drawn in presence of pancha witness Dinesh Gajghate (PW4). The
said is at Exh.-14-A. In presence of pancha witness Dinesh Gajghate
(PW4), the articles lying on the spot i.e. the iron rod having blood
stains was also seized under seizure memo Exh.-14-B. Clothes of
Mayabai were seized under seizure memo Exh.-47.
(f) The inquest on the dead body of Nandabai was conducted
by Dinesh Labde (PW15) a Police Sub Inspector working with Police
6 apeal584.14.odt
Station, Umred on the directions of PI Madhukar Gite (PW13). The
inquest panchanama is at Exh.-88. He also seized simple as well as
blood smeared soil, broken pieces of bangles, knife and other articles
which were noticed on the spot under seizure memo Exh.-86. Those
articles were duly sealed. The appellant, who was admitted for the
medical treatment was discharged on 08.07.2011 and on the said
day, he was arrested. His clothes are seized. On 09.07.2011, the
appellant gave his disclosure statement Exh.-49 thereby he agreed to
show the place where he concealed the sickle, which was used by
him for making assault on Suresh and Sunil Gupta and the plastic
cover of poison. Accordingly, from the place which was disclosed by
the apepllant, a sickle as wells a a towel was seized under the seizure
memo Exh.-50. All the seized articles were sent to Chemical
Analyzer. After completion of the entire investigation, charge-sheet
was filed before the court of law. The learned Magistrate, in whose
Court, the charge-sheet was presented, committed the case to the
Court of Sessions since the offence was exclusively triable by the
Court of Sessions.
(g) After its committal, the learned Additional Sessions Judge
framed charge for an offence punishable under Section 302 of the
IPC for committing murder of Mayabai and Nandabai, under Section
7 apeal584.14.odt
307 for making murderous assault on Shantabai and Suresh Gupta
(PW2) and under Section 326 of the IPC for making assault on Sunil
Gupta (PW8), under Section 506 (2) for extending threats to
Shubhangi (PW5) and under Section 309 for attempting to commit
suicide.
(h) In order to bring home the guilt of the accused, the
prosecution examined in all 18 witnesses and also relied on various
documents which were duly proved during the course of trial.
(i) After a full dress trial, the learned trial Judge acquitted
the appellant of the offence punishable under Section 307 for making
murderous assault on Suresh (PW2) and also acquitted of the offence
punishable under Section 326 of the IPC. The learned Judge found
that the appellant is guilty of committing an offence under Section
323 for making an assault on Shantabai.
3. Though, the appellant is acquitted of the offence under
Section 307 of the IPC, the State has not preferred any appeal.
4. We have heard Mr. A. B. Moon, learned counsel for the
appellant and Mr. C. A. Lokhande, learned A.P.P. for the State in
extenso. The learned counsel for the appellant submitted that the
8 apeal584.14.odt
prosecution has failed to prove the motive for committing murder of
Mayabai and Nandabai. He also submitted that in absence of any eye
witness, the appellant cannot be convicted for the offence of
committing murder of his wife Mayabai. He submitted that
Shubhangi (PW5) being a child witness, her evidence need not be
considered and if her evidence is kept aside then there is no evidence
to connect the appellant with the offence of committing murder of
Mandabai. He, therefore, prayed that the appellant may be acquitted.
Per contra, the learned A.P.P. for the State submitted that
the prosecution is successful in establishing the guilt of the appellant.
He supported the impugned judgment and prayed for dismissal of the
appeal.
5. Whether the prosecution is successful to prove that the
nature of deaths of Mayabai and Nandabai were homicidal?
6. The dead body of Mayabai was brought at Rural Hospital,
Umred on 06.07.2011 by PSI Mankar (PW16). Dr. Jayashree Petkar
(PW17) was Medical Officer at Rural Hospital, Umred. She
conducted post mortem over dead body of Mayabai. On examination
of the dead body, she noticed following external injuries:
9 apeal584.14.odt
"1. Lacerated would over forehead middle 3cm X
1cm X skull deep.
2. Lacerated wound near injury no.1 left side size
3 cm X 1 cm X skull deep (deep to skull).
3. Lacerated wound above injury no.2 left side 2
cm X 1 cm x skull deep.
4. Lacerated would over scalp midline frontal
region 3 cm X 1 cm X skull deep.
5. Lacerated wound behind left ear 5 cm X 5 cm X
skull deep irregular margin.
6.
Lacerated wound continuation with injury no.5
occipital region 10 cm X 7 cm X skull deep irregular
margin.
7. Lacerated would behind right ear continuation
with injury no.6 size 5cm X 5cm X skull deep (deep to
skull)
8. Incised would left middle finger at
metacarpocaral join 2 cm X 0.5 cm X .5 cm anterior.
9. Incised would left middle finger at
metacarpocaral joint dorsal 1 cm X 0.5 cm X .5 cm.
10. Abrasion over right back 3 cm X 1 cm.
11. Abrasion over right waist 3 cm X 1 cm.
12. Incised would right ear Pinna upper 1/3rd
portion 2 cm in length."
The autopsy surgeon noted following three fractures when
she opened the dead body:
"On Head: Injury under the scalp : Subdural hemorrhage.
10 apeal584.14.odt
Skull:
a) Fracture occipital region 10 cm X 2 cm.
b) Fracture over temporal region left side 3 cm X 2 cm.
c) Fracture over temporal right side 3 cm X 2 cm."
According to the autopsy surgeon, all the injuries were
ante mortem. According to her, the cause of death was hemorrhagic
shock with cerebral hemorrhage with fracture of skull. The post
mortem report is at Exh.-41.
7. According to Dr. Jayshree Petkar, the injuries noticed on
the dead body of Mayabai were sufficient in ordinary course of
nature to cause death. When the inquest over the dead body of
Mayabai was conducted by PSI Mankar (PW16) in presence of
pancha, several injuries were noticed including injuries on the skull.
The inquest panchanama is at Exh.-74.
In view of the evidence of autopsy surgeon and the
injuries as referred, it is crystal clear that the death of Mayabai was
homicidal in nature.
8. Insofar as Nandabai is concerned, the post mortem is also
conducted by Dr. Petkar (PW17). The post mortem report in respect
11 apeal584.14.odt
of Nandabai is at Exh.-59. While conducting post mortem, the
autopsy surgeon found following injuries.
"i) Injury around 3 cm X 1 cm X deep through inside
portion on the left side of chest.
ii) 2 cm below clavicle and 2 cm lateral sternum."
According to the autopsy surgeon, this was a major injury
and is caused by hard and sharp object. According to the autopsy
surgeon, the cause of death was "hemorrhagic shock due to stab
wound of left lung." Dr. Petkar also stated from the witness box that
the aforesaid injury was ante morten and was sufficient in the
ordinary course of nature to cause death.
In view of the post mortem report Exh.-59 and looking to
the evidence of the autopsy surgeon, there cannot be any doubt that
Nandabai met homicidal death.
9. The further question that arose for consideration is as to
whether the appellant is responsible for causing deaths of these two
ladies as claimed by the prosecution?
10. According to the prosecution, the appellant was
nourishing a grudge in his mind that Mayabai is having illicit
relations with Suresh Gupta (PW2).
12 apeal584.14.odt
The learned counsel for the appellant pointed out that
Ankush Patil (PW6), the brother of the deceased deposed that the
relations in between the appellant and deceased Mayabai were
cordial in nature. Therefore, from his statement, the motive is not
proved.
According to the prosecution, the appellant was under
impression that his wife is having illicit relations with Suresh Gupta
(PW2). The house of Suresh Gupta, who is an auto driver, is situated
opposite the house of the appellant. The appellant had also assaulted
Suresh Gupta in the night of the date of the incident itself. His injury
certificate at Exh.-31 shows three incised grievous wounds over the
vital part of his body. The assault was made when Suresh Gutpa was
sleeping in the courtyard of his house along with Sunil Gupta, his son
who was also assaulted by the appellant and his injury certificate is at
Exh.-33.
11. The appellant is acquitted of the charge for the offence
punishable under Section 307 of the IPC for making the murderous
assault on Gutpa father and son. Perusal of judgment of the Court
below shows that the learned Judge of the Court below has given
benefit of doubt for acquitting the appellant from the said charge.
13 apeal584.14.odt
12. The testimony of Suresh Gupta shows that the appellant
used to suspect that he is having illicit relations with his wife. This
fact was made known to one Bhaurao Bhoyar by Suresh Gupta. Be
that as it may. There was no reason for the appellant to make a
murderous assault on Suresh if he was not having any suspicion
about illicit relations. In view of the evidence of Suresh Gupta that
the appellant was suspecting the fidelity of his wife qua Suresh, in
our view, the prosecution has proved the motive for committing
murder of Mayabai.
13. The dead body of Mayabai was found inside the house of
appellant situated at Udasa-Haveli road. The spot panchanama is
duly proved by the pancha witness Dinesh Gajghate (PW4). During
the course of investigation, the Investigating Officer Madhukar Gite
(PW13) obtained information from the Secretary of Gram Panchayat,
Udasa through a letter dated 20.09.2011, Exh.-70 that the appellant
used to reside with Mayabai, the deceased in the house no.357.
14. When API Ajay Mankar (PW16) was drawing the spot
panchanama where the dead body of Mayabai was found, he noticed
that an iron pipe was lying near the dead body. The said was seized
14 apeal584.14.odt
in presence of pancha witness Dinesh Gajghate (PW4) by drawing
the detailed panchanama Exh.14-B.
The iron pipe was sent to Dr. Petkar (PW17) under
requisition vide Exh.-95. Dr. Petkar states from the witness box that
when she examined the said weapon, she noticed dry blood stains.
According to her, the injuries mentioned in the post mortem report of
Mayabai could be caused by the object sent to her. Accordingly, she
issued her query report Exh.-42. The iron pipe was handed over in a
sealed condition to the police.
15. The evidence as brought on record shows that the dead
body of Mayabai was lying in the residential house which is a normal
place of residence of the appellant. Unless otherwise proved, his
presence in the house in the night hours cannot be disputed. There is
nothing available on record to show that the appellant was not
present in his house with Mayabai on the date and time of incident.
On the contrary, the scrutiny of evidence of Shubhangi (PW6) shows
that the appellant had been to the house of Nandabai and called
them on the pretext that Mayabai is admitted in the hospital for
snake bite.
15 apeal584.14.odt
No explanation is offered whatsoever in any nature by the
appellant in respect of the injuries appearing on the body of Mayabai
when she was in his custody in his house. In that view of the matter,
the provisions of Section 106 of the Indian Evidence Act has its effect
in the present case.
16. In view of the aforesaid evaluation of the prosecution
evidence, it is clear that as per the Chemical Analyzer's report Exh.-
63, the blood group of the deceased Mayabai was 'B'. The seized
articles namely clothes of the appellant as well as the iron pipe was
sent to the Chemical Analyzer. The Chemical Analyzer's report in
that behalf is at Exh.-61. It shows that the iron pipe was having
blood group 'B' whereas on the clothes of the appellant, human blood
was noticed and for that no explanation is offered.
Thus, there is no doubt in our mind that the appellant is
the author of the injuries, which resulted into death of Mayabai.
Therefore, the finding reached by the learned Judge of the Court
below are confirmed.
17. Insofar as Nandabai is concerned, she was assaulted in
presence of Shantabai and Shubhangi. Shantabai was mother of
16 apeal584.14.odt
Nandabai whereas Shubhangi is daughter of Nandabai. Due to
demise of Shantabai, the prosecution could not examine her.
18. Shubhangi (PW5) is examined by the prosecution as its
witness. Her evidence shows that deceased Nandabai was her
mother. She used to reside with her mother and grandmother
Shantabai at Ghodimare layout, Umred. Exh.-18, oral report lodged
by Ankush Patil (PW6) which set the criminal law into motion shows
that his sister Nandabai and mother Shantabai used to reside in a
house near Bhivapur naka since the husband of Nandabai left her.
According to the evidence of Shubhangi, in the
intervening night of 05.06.2011 and 06.06.2011 at about 3.00 a.m.,
the appellant who is her maternal uncle came to their house and
knocked the door. He asked Nandabai to open the door. They all
woke up. On inquiry by her mother, the appellant replied that
Mayabai had a snake bite and she is taken to the hospital for
treatment and requested them to accompany him to see her.
According to the evidence of Shubhangi, thereafter she, deceased
Nandabai and her grandmother proceeded along with the appellant.
After going for some distance on a kaccha road, all of a sudden, the
appellant assaulted Nandabai by means of knife in his hand.
17 apeal584.14.odt
Shantabai tried to intervene. That time, he gave a knife blow on
Shantabai also and asked Shubhangi to go away else he will kill her.
It is further deposed by Shubhangi that she and her grandmother
frightened.
It is further the evidence of Shubhangi that thereafter she
went to the house of her maternal uncle Vikas Hadge (PW14). He
also corroborates the version of Shubhangi that Shubhangi came to
him and informed that her mother is assaulted. Therefore, he along
with Shubhangi went to the spot. There he noticed that Shantabai
was sitting near Nandabai and one knife was lying near the body of
Nandabai.
According to the evidence of Shubhangi, thereafter, her
mother Shantabai went near the house of one Waghmare and
informed the incident, who made a phone call to police and
thereafter the police reached to the spot. The evidence of Shubhangi
remained unshaken during her cross-examination.
19. According to the learned counsel for the appellant,
Shubhangi is the only eye witness to the incident and she being
interested one, reliance should not be kept on her testimony in
absence of any independent eye witness count.
18 apeal584.14.odt
20. The incident has occurred on 06.07.2011 in the morning.
That time, one cannot expect the presence of any independent
person. The presence of Shubhangi on the spot was there since she
was accompanying Nandabai to go to the hospital as the appellant
informed them that Mayabai had a snake bite and she is hospitalized.
Further, Shantabai who could not be examined during trial due to
her demise, was also injured. She was referred to the rural hospital
Umred and she was examined by Dr. Omprakash Gudalwar (PW11).
He issued injury certificate, which is at Exh.-35. The injury certificate
shows the evidence of following injuries:
"(i) incised wound on right hand 2 cm X ½ cm,
(ii) incised wound on right index finger 1 ½ cm x 4 cm.
(iii) incised wound on left scapular region 3 cm x ½ cm,
(iv) incised wound on left arm 1 cm X 1 ½ cm., and
(v) abrasion over left iliac crest."
The injury certificate of Shantabai gives credence to the
evidence of Shubhangi that when Shantabai tried to intervene at the
time of assault on Nandabai, she was also assaulted by means of
knife by the appellant. Further, the testimony of Shubhangi is free
from omissions. Her evidence inspires confidence. In our view, she
is witness to the truth. There is no reason for this girl to depose
against the appellant. Further, she has immediately disclosed the
19 apeal584.14.odt
fact of assault on her mother by appellant to Vilas Hadge (PW14).
The immediate disclosure on the part of Shubhangi also to be
weighed in her favour for accepting her version. There is nothing
available to show that Shubhangi is tutored one.
21. Dr. Jayshree Petkar (PW17) has also examined the knife,
the weapon under requisition letter. She noticed that the knife was
having length of 29 cm, handle of 11 cm and breadth in the middle 1
inch, pointed end with blood stains. After examination of the knife,
she gave her opinion that the injury noticed in the post mortem
report of Nandabai can be caused by the said object. Accordingly,
she gave her query report Exh.-52. The knife when examined by the
Chemical Analyzer, was found to be blood stained. The Chemical
Analyzer's report Exh.-61 shows that the knife was having human
blood though the group could not be proved.
22. Thus, the prosecution has successfully proved its case
against the appellant that he has caused death of Nandabai through
direct evidence of Shubhangi (PW5).
In our view, the learned Judge of the Court below has
rightly convicted the appellant for causing injuries to Shantabai also.
20 apeal584.14.odt
23. The upshot of the aforesaid discussion leads us to pass the
following order.
Criminal Appeal No.584/2014 is dismissed. However, the
operative part of the impugned judgment directing that the sentences
awarded to the appellant shall run and commence one after another
is modified.
It is hereby directed that all the sentences awarded to the
appellant by the learned Sessions Judge shall run concurrently.
Rest of the order is maintained as it is.
(V. M. Deshpande) (B. R. Gavai)
kahale
21 apeal584.14.odt
CERTIFICATE
I certify that this Judgment/Order uploaded is a true and
correct copy of original signed Judgment/Order.
Uploaded by: Y. A. Kahale. Uploaded On:01.08.2016
