Bombay High Court
Ankush S/O Ramdayal Gajbhiye (In ... vs State Of Maharashtra, Through ... on 28 June, 2016
Bench: B.R. Gavai
1 apeal.589.13.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.589 OF 2013
Appellant : Ankush Ramdayal Gajbhiye,
Aged Major,
R/o Dhusala, Police Station Andhalgaon,
Tah. Mohali, District Bhandara.
ig -- Versus --
Respondent : State of Maharashtra,
through P.S.O. Andhalgaon,
District Bhandara.
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Mr. R.R. Shrivastava, Advocate for the Appellant
Mr. M.J. Khan, A.P.P. for the Respondent/State
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C ORAM : B.R. GAVAI AND V.M. DESHPANDE, JJ.
DATE : 28
JUNE, 2016.
th
ORAL JUDGMENT :- (Per B.R. Gavai, J.)
01] The appellant has approached this Court being aggrieved
by the judgment and order passed by the learned Additional Sessions
Judge, Bhandara, dated 17/10/2013 in Sessions Case No.45/2011,
thereby convicting the appellant for the offence punishable under
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Section 302 of the Indian Penal Code and sentencing him to suffer
rigorous imprisonment for life and to pay fine of Rs.1,000/-, and in
default to suffer further rigorous imprisonment for three months. The
appellant has also been convicted for the offence punishable under
Section 364 of the Indian Penal Code and sentenced him to suffer
rigorous imprisonment for life and to pay fine of Rs.1,000/-, and in
default to suffer further rigorous imprisonment for three months. He
has also been convicted for the offence punishable under Section 366-A
of the Indian Penal Code and sentenced him to suffer rigorous
imprisonment for seven years and to pay fine of Rs.500/-, and in default
to suffer further rigorous imprisonment for two months. He has also
been convicted for the offence punishable under Section 376(2)(f) of the
Indian Penal Code and sentenced him to suffer rigorous imprisonment
for ten years and to pay fine of Rs.1,000/-, and in default to suffer
further rigorous imprisonment for three months. The appellant has
also been convicted for the offences punishable under Section 201 of the
Indian Penal Code and sentenced him to suffer rigorous imprisonment
for three years and also to pay fine of Rs.500/-, and in default to suffer
further rigorous imprisonment for two months.
3 apeal.589.13.jud
02] The prosecution story in a nutshell as could be gathered
from the material placed on record is thus :
Ku. Sweety Amraj Gajbhiye was the daughter of first
informant-Amraj Shivraj Gajbhiye. On 12/03/2011 at around 06:00
p.m., when the first informant returned home, he did not find his
daughter Sweety in his house. He made enquiry about his daughter
and tried to search her. His neighbour informed him that the accused
had taken the deceased to Bondri Miners on his bicycle and set her on
fire. Hence, the first informant went to the spot of incident and saw
his daughter lying dead in burnt condition. As such, he lodged oral
report below Exh.14.
On 13/03/2011, on the basis of said oral report, F.I.R.
No.16/2011 came to be lodged below Exh.15. On the basis of the F.I.R.,
the investigation was set in motion. At the conclusion of investigation,
charge-sheet came be filed in the Court of learned Judicial Magistrate
First Class, Mohadi, District Bhandara. Since the case was exclusively
triable by the Sessions Judge, the same came to be committed to the
learned Sessions Judge. The learned Sessions Judge framed the
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charge for the offences as aforesaid. The accused pleaded not guilty
and claimed to be tried.
At the conclusion of the trial, the learned Trial Judge
passed the order of conviction and sentenced the accused, as aforesaid.
Being aggrieved thereby, the present appeal is filed.
03] Shri R.R. Shrivastava, learned Counsel appearing on
behalf of the appellant submits that the learned Trial Judge has
grossly erred in passing the order of conviction. He submits that in the
present case, the prosecution has failed to prove the incriminating
circumstances beyond reasonable doubt. It is submitted that in any
case, the prosecution has failed to establish the chain of events, which
leads to no other conclusion than the guilt of accused. It is , therefore,
submitted that the appeal deserves to be allowed and the accused be
acquitted of the charges charged with.
04] Shri M.J. Khan, learned Additional Public Prosecutor, on
the contrary, submits that the prosecution has proved the
circumstances of the accused last seen in the company of the deceased
and the death of deceased occurring immediately thereafter. It is
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further submitted that the appellant has failed to give his explanation
with regard to the said circumstances.
05] Undisputedly, the present case is the case based on the
circumstantial evidence. It will be, therefore, necessary for the
prosecution to prove each and every incriminating circumstances
beyond reasonable doubt. It would also be necessary for the
prosecution to establish that the chain of circumstances proved is so
complete that it leads to no other conclusion than the guilt of the
accused. In the light of this, we will have to examine the material
placed on record.
06] On perusal of the evidence of PW-12 Dr. Ratnakar
Bandebuche, who had done postmortem of dead body of the deceased,
and prepared postmortem query report below Exh.50, we find that no
interference is warranted with the finding that the death of the
deceased is homicidal.
07] The main circumstance, on which the prosecution relies, is
the accused last seen in the company of the deceased. In support of
this circumstance, the prosecution has examined three witnesses.
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First one is PW-2 Rajesh Pudke. He has stated in his evidence, which
is below Exh.16, that the incident has taken place in the month of
March, 2011 at around 06:30 p.m.. On the date of incident, when he
was returning home on his bullock-cart from his field, he saw the
accused going with a girl aged about 10 years on his bicycle towards
Ghorpad. On perusal of the evidence of this witness, it would reveal
that though he in his cross-examination had admitted that he was not
knowing the said girl, he was knowing the accused. It can thus be seen
that his evidence has throughly supports the case of the prosecution
that a girl was last seen in the company of the accused prior to her
death.
08] On perusal of the evidence of PW-10 Ashok Meshram,
which is below Exh.43, it would be seen that on the day of incident at
around 05:45 p.m. to 06:00 p.m., he saw the accused taking the
deceased on the bicycle towards Bondri. At that time, he was
returning to the village Kathalabodi from Kandri Bazar. He states
that on the next day morning, he came to know about the death of the
daughter of the complainant by ablazing her in the field of Balaji
Watkar. He further states that the place, where the daughter of the
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complainant was set on fire, is at the distance of 1 to 1½ kms from the
place where he saw the deceased with accused. He further states that
he knew the accused, complainant and the deceased as they reside near
his in-laws' house. He has also identified the girl, who was seen by him
with the accused on previous day, by going to the spot. Though this
witness has been throughly cross-examined, the incriminating evidence
that the accused and the deceased were going together on a bicycle
remains unproved.
09] The prosecution has examined third witness in support on
this circumstance viz. PW-14 Laxmi Marbate below Exh.55. She states
in her evidence that on the day of the incident in the evening, she saw
the accused taking Sweety on his bicycle on Ghorpad road. She states
that Sweety was wearing red midi and white shirt. She states that at
that time, she was taking her she-goats to her house. She told the
accused why he is riding the bicycle so fast. The accused did not stop
and went away with the said girl. She states that on the next day, she
saw Amraj inquiring about his daughter. She told him that accused
Ankush took away his daughter on Ghorpad road. This witness has
also been thoroughly cross-examined. However, insofar as her
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evidence regarding the accused last seen in the company of the
deceased is concerned, same has remained unproved. We, therefore,
find that the prosecution has established that the accused was last
seen in the company of the deceased.
10] However, we find that the most clinching evidence against
the present appellant is the scientific evidence. On perusal of the
evidence of PW-12 Dr. Ratnakar Bandebuche, the Medical Officer and
PW-15 Sau. Vaishali Mahajan, the Assistant Chemical Analyzer, it
would show that the prosecution has clearly proved that the present
appellant has committed the crime. The evidence of PW-12 would
show that he had sent viscera of organ, blood sample, vaginal swab,
cervical swab, right femur bone etc. for chemical analysis and handed
it over to the police on duty. His evidence further shows that the DNA
extracted from blood sample of Amraj Gajbhiye and Leena Gajbhiye,
the father and mother of the deceased, and femur bone of deceased has
matched with the maternal and paternal alleles. He has further
deposed that the DNA profile obtained from blood detected on full shirt
of the accused is of the female origin and matched with maternal and
paternal alleles present in femur bone of the deceased.
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11] The prosecution has established complete chain insofar as
the scientific evidence is concerned. From the evidence of PW-5
Pandurang Kumbhare, it would reveal that the seizure-panchnama
insofar as the blood samples, hair of the head, EDTA blood sample,
femur bone, upper jaw prepared below Exh.29 has been duly proved by
PW-5. The seizure of vaginal swab, cervical swab and anal swab of the
deceased is also proved below Exh.30. The seizures of blood samples of
father and mother of the deceased Sweety are also proved below
Exh.31 and Exh.32 respectively. On perusal of the seizure-
panchnama, it would also reveal that there is also an evidence
regarding sealing of the said articles.
12] The perusal of the evidence of PW-9 Amraj Zandad, the
panch, would reveal that the prosecution has proved the seizure of
blood sample, EDTA sample, semen sample, swab of the penis, swab of
scrotal region, public hairs, hairs of the head and nails of the accused
vide seizure-panchnama below Exh.36. The same has been seized by
PW-7 Tirimurti Landge, the Police Constable.
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13] The evidence of PW-8 Vijay Chole, the Police Constable
would reveal that these articles were taken for chemical analysis to the
Chemical Analyzer and the Anatomy Department, Government
Hospital, Nagpur. The evidence of PW-15 Sau. Vaishali Mahajan, the
Assistant Chemical Analyzer would reveal that she has received all the
aforesaid articles from the Police Station, Andhalgaon. She states in
her evidence that she made DNA profile of Leena Gajbhiye and Amraj
Gajbhiye i.e. the mother and father of the deceased, and tallied the
DNA profile of the same with the DNA profile of femur bone [Exh.4].
She states that the obligate paternal alleles present in Exh.4 matched
with that of the mother Leena Gajbhiye and father Amraj Gajbhiye.
She states that she, therefore, gave her opinion that putative father
Amraj Gajbhiye and putative mother Leena Gajbhiye are concluded to
be the biological parents of Exh.4 femur bone from DNAn027/11. Her
opinion is also exhibited below Exh.51 in her evidence. Her evidence
also shows that the DNA profile on the blood detected on full shirt of
the accused tallied with the DNA profile of Exh.4 in DNAn/27/11 femur
bone. The DNA profile obtained from the blood detected on the full
shirt of the accused was also of male origin and matched with the
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maternal and paternal alleles present in Exh.4. It could thus be seen
that the scientific evidence clearly shows the blood on the full shirt of
the accused matched with the DNA profile of the deceased.
14] The accused in his statement recorded under Section 313
of the Code of Criminal Procedure has failed to give any clarification
with regard to the incriminating circumstances against him.
15] In that view of the matter, we do not find that any
interference is warranted in the judgment and order recorded by the
learned Court below. The appeal is without substance and deserves to
be dismissed. Hence, the following order :
1. The criminal appeal is dismissed.
2. Fees of the learned Counsel appointed for the appellant is
quantified at Rs.5,000/-.
3. At the request of the learned Counsel for the appellant, the
fees of Rs.5,000/- payable to him, be given to the District
Court Bar Library, Nagpur.
JUDGE JUDGE
*sdw
