Jagannath Dagadu Shirgaonkar vs The State Of Maharashtra
2016 Latest Caselaw 2636 Bom

                                                                               APEAL860_2014

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                                                    
                            CRIMINAL APPEAL NO. 860 OF 2014




                                                            
        Jagannath Dagadu Shirgaonkar                  ...   Appellant
              vs.
        The State of Maharashtra                     ...    Respondent




                                                           
        Mrs. Nasreen S. K. Ayubi, Advocate for the appellant.
        Mrs. U.V. Kejriwal, APP for the respondent/State.

                                       CORAM: MRS. V.K. TAHILRAMANI &




                                                
                                             MRS. MRIDULA BHATKAR, JJ.

ig JUNE 8 , 2016.

ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)

This Appeal is directed against the judgment and order dated 24 th

January, 2014 passed by the Additional Sessions Judge, Pune in Sessions

Case No. 77 of 2012 thereby convicting the appellant for life imprisonment

for the offences punishable under section 302 of IPC and pay fine of

Rs.5,000/-, in default of payment of fine to suffer S.I. for four months.

2. The incident of murder of Raghunath Chander Garje has taken place

on 13th September, 2011 at about 10.30 a.m. within the jurisdiction of

Kikvi, Raigad Police Station. One Suresh Raghunath Garje, son of

deceased, gave information to the police of assault on 13th September, 2011

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and the offence was registered at C.R. No. 124 of 2011 with Raigad Police

Station initially under section 307 of the Indian Penal Code.

3. It is the case of the prosecution that the accused Jagannath Dagadu

Shirgaonkar and deceased Raghunath Chander Garje are the residents of

same village. They are neighbours. The accused developed doubt

approximately 1 month prior to the incident that his wife is having illicit

relationship with deceased Raghunath. With this motive, on 13 th

September, 2011 at around 10 a.m. when no family members of the

deceased were present in his house, the accused entered the house with axe

and he assaulted Raghunath Garje on his head and cheek. Raghunath fell

down due to the assault. The complainant, his wife and mother were in the

field, they received information about the assault by one Prakash Anandrao

Ombale, the next door shopkeeper. As soon as the complainant received

this message, he went to the Joglekar Hospital, Shirwal to see his father

who was in ICU. On the same day at night, complainant Suresh Garje

went to Kikvi Police Station and lodged complaint, which is marked at

Exhibit 25. Initially it was registered for the offences punishable under

section 307 of the Indian Penal Code. Raghunath Garje was treated in the

hospital, however, he did not respond to the treatment and succumbed to

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the injuries on 16th September, 2011. Thereafter Section 302 of IPC was

added. On 13th September, 2011 at around 9.30 p.m., i.e., immediately

after recording of the FIR, the accused himself surrendered to the police

along with axe, i.e., the weapon used in the commission of crime. The

police seized the clothes of the accused and axe under panchnama (Exhibit

34 and 35). The clothes of the deceased was seized under panchnama

(Exhibit 36). The statements of the witnesses were recorded on the next

day, i.e., 14th September, 2011 and on the other dates. Inquest panchnama

(Exhibit 31) was conducted on 17th September, 2011 and Dr. Amol Balwant

Shinde (PW-10) carried out postmortem along with Dr. A.P. Dalvi. The

postmortem report is produced, which is marked Exhibit 57. After

completion of the investigation, police filed charge in the Court of

Magistrate and the learned Magistrate committed the case to the Court of

Sessions.

4. The charge was framed against the appellant for the offences

punishable under section 302 of IPC. The appellant pleaded not guilty and

defended the case that he is innocent. The prosecution in all examined 12

witnesses. The learned Sessions Judge after considering the evidence of

the prosecution and the defence adopted by the accused held the accused

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guilty for the offence of murder and sentenced him for life. Hence, this

appeal.

5. The learned counsel for the appellant/accused submitted that the case

of the prosecution stands on very weak evidence. There is no eye witness

and the circumstances which are brought on record are not sufficient to

establish the guilt of the accused.

6.

Learned APP opposed this Appeal and has argued that the conviction

given by the trial Court is to be maintained, as the prosecution is successful

in proving the chain of the circumstances against the appellant/accused.

7. We went through the entire evidence carefully. There is no eye

witness to the incident. Through complainant Suresh Garje and

neighbouring witness Kaushalya @ Ratna (PW-2), the prosecution has

brought the evidence on record that few days prior to the incident, the

accused had started suspecting the character of his wife and he had doubt

that deceased Raghunath Garje was having illicit relations with his wife.

On 13th September, 2011 at about 10.30 to 11 a.m. Raghunath Garje was

found injured. Two injures, one from his neck to ear and the other from ear

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to skull were found on his person. Dr. Vinay Joglekar (PW-7) treated him

first, as the deceased was brought in the hospital of Shri Seva Medical

Foundation Shirwal. He has deposed that the deceased was unconscious

and was not in a condition to give statement. He found two external

injuries, one CLW on the face and other incised wound on the occipital

region. Dr. Anil Balwant Shinde (PW-10) who performed postmortem on

the body of Raghunath Garje has specifically mentioned that the cause of

death is due to multiple injuries over head and injury nos. 2 and 3 which

caused death were possible with the axe. Thus, the prosecution proved

motive and also homicidal death of Raghunath Garje.

8. It is necessary to see the evidence on the point of incident which is

tendered by the prosecution. The complainant Suresh Raghunath Garje

has stated that he received information of assault from Prakash Ombale

(PW-4) in the late morning when he was in the field. Prakash Ombale

(PW-4) is examined and he told that Shubhangi, who is daughter-in-law of

the brother of the accused came to his shop and told him to communicate

about the incident of assault on Raghunath Garje to his son Suresh. No

witness is examined by the prosecution on the point of actual assault.

Nobody has seen the incident of assault. The only witness PW-2

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Kaushalya @ Ratna Jagannath Sanas is material in respect of assault in the

entire evidence. She is neighbour of accused Jagannath Shirgaonkar. She

has deposed that on 13th September, 2011 at about 11.30 a.m. when she was

drying the clothes, she saw accused Jagannath with axe after assaulting

Raghunath Garje and she tried to take away axe from him. At that time,

she heard Shubhangi saying loudly "Let Jagannath Shirgaonkar go and to

come here", so she went to the house of Raghunath Garje which was

nearby. She saw Raghunath Garje in a pool of blood lying unconscious.

He was injured and was shifted to hospital. The statement of Kaushalya

was recorded on 14th September, 2011. She identified Article 7 (pyjama),

Article 6 (shirt) and cap of the accused. Thus Kaushalya herself had not

seen the actual assault. She saw the accused with axe. In the evidence she

said that she saw the accused with axe and he had assaulted Raghunath

Garje. It appears that she just drew inference that the accused was the

assailant of Raghunath Garje . She deposed that she tried to take away axe

from him. In her evidence, she did not state that axe was blood stained. If

at all she had seen Jagannath immediately after assaulting Raghunath, then

considering the nature of injuries that axe ought to have been blood stained.

If the axe was blood stained, why she wanted to take away the axe from the

accused. Her act of taking away axe would have been normal if she would

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have seen accused actually assaulting the deceased and her intervention

could have been found natural action stop assault. However, once she

knew that the person has assaulted Raghunath and the axe is blood stained,

no lady would try to take the axe. Moreover, the evidence of Kaushalya is

not corroborated with the evidence of any witness or that circumstance.

Her evidence becomes shaky if evidence of seizure of clothes of the

accused and seizure of axe, i.e., weapon used in the assault is further

scrutinized.

9. PW-5 Dattatraya Shanker Pawar and PW-11 Anil Dnyanoba Surve

were examined as panchas on the point of arrest of the accused and seizure

of articles from the accused at the time of his arrest. As per the case of the

prosecution, the appellant/accused himself appeared at the police station on

13th September, 2011 at around 9.30 p.m. He was wearing pyjama, shirt

and cap. The police seized those things under panchnama (Exhibit 34).

The accused arrived at the police station along with axe which he had used

in the offence. The said axe was seized by the police under panchnama

(Exhibit 35). PW-5 Dattatraya Shanker Pawar and PW-11 Anil Dnyanoba

Surve who are supposed to prove these panchanamas, did not support the

case of the prosecution. They both said that nothing was seized in their

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presence and no panchnama was actually prepared. As they were asked to

sign, they simply signed. These panchnamas are proved through

Investigating Officer (PW-12) Nivrutti Parvati Kumbhar. He has stated

that he sent the articles, i.e., clothes of the accused and clothes of the

deceased and axe to the Forensic Laboratory in order to obtain report of the

Blood group. The C.A. report marked '73' is produced by the prosecution

through the Investigating officer. The C.A. Report discloses that the shirt

(Article 6), pyjama (Article 7) and axe (Article 9) belonged to the accused

and Articles 1, 2 and 3 are clothes of the deceased. As per the report, the

blood stains were found on these articles and they are of human being. The

blood group found on Articles 1, 2 and 3 is "AB". Thus the blood group of

the deceased is proved as "AB". However, the blood group of the blood

stains found on the shirt and pyjama of accused (Articles 6 and 7) and axe

(Article 9) is reported as inconclusive. While going through the CA report,

we found that descriuption of Exhibit 6 i.e. shirt is mentioned as follows:

"Exhibit (6) is stained with blood at places and appears to be washed"

Thus, C.A. has specifically observed that the shirt on the person of the

accused which was seized under the panchnama was though blood stained,

appeared to be washed. This observation appears very natural because as

per the case of the prosecution, the accused surrendered before the police

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on the same day at around 9.30 p.m. The incident has taken place at

around 10.30 a.m. Thus, it was natural for the accused not to move around

or not to remain with blood stained shirt throughout and he might have

tried to wash the said shirt. However Exhibit 9, which is axe, is described

as "Exhibit (9) is stained with blood on blade and handle". Thus, it shows

that the blade and handle of the axe was blood stained when sent to C.A.

However, in the seizure panchnama, there is no mention that the seized axe

was blood stained. Moreover, it cannot be expected that the accused from

10.30 a.m. to 9.30 p.m., i.e., nearly 11 hours will keep the axe with blood

on it. If at all the accused has washed his shirt, then he was bound to wash

the axe which was blood stained and used for the actual assault. If at all it

was washed, the CA in the report must have mentioned that axe with blood

stained but washed, however, CA did not report that it was washed but it

reported that axe blood stained. Thus, it seems abnormal and creates doubt

about the recovery of axe and the quality of the investigation.

10. Again referring to the evidence of Kaushalya, we observe that

Kaushalya did not mention that the axe was blood stained. Without

noticing axe blood stained, she jumped to the conclusion that Jagannath

assaulted Raghunath. The observation of blood stains by Kaushalya was

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necessary. Her evidence is not natural and hence does not inspire

confidence in the mind. The conclusion of accused was the assailant of the

deceased cannot be based on the surmises and unconnected facts. Under

such circumstances, the prosecution has miserably failed to establish the

case against the accused of murder punishable under section 302. Hence,

we are of the view that the appreciation of the evidence of the learned

Sessions Judge is not correct and therefore, we set aside the said judgment

and order of conviction. We acquit the appellant/accused from the offences

punishable under section 302 of IPC.

11. Appeal is hereby allowed.

12. Office to communicate this order to the concerned jail authorities and

to the appellant, who is in jail.

(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)

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