Bombay High Court
Vishwanath S/O Shankar Deogade ... vs The State Of Maharashtra, Through ... on 16 March, 2016
Bench: B.R. Gavai
1 APEAL497-13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.497/2013
...
Vishwanath Shankar Deogade,
aged about 64 years,
Occupation: Labour,
R/o Wirwa, Tahsil Sindewahi,
District Chandrapur. .. APPELLANT
ig .. Versus ..
The State of Maharashtra,
through Police Station Officer,
Police Station Mul, Tahsil Mul,
District Chandrapur. .. RESPONDENT
Mr. N.H. Samundre, Advocate for Appellant.
Ms. R.V. Kalia, Additional Public Prosecutor for Respondent.
....
CORAM : B.R. Gavai & A.S. Chandurkar, JJ.
DATED : March 16, 2016.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. The appeal challenges the judgment and order passed by
the learned Additional Sessions Judge, Chandrapur, dated
31.12.2012 thereby convicting the appellant for the offence
punishable under Section 302 of the Indian Penal Code and
sentencing him to suffer imprisonment for life and to pay a fine of
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Rs.2,000/- in default to undergo rigorous imprisonment for 2 months
and also convicting him for the offence punishable under Section
307 of the Indian Penal Code and sentencing him to suffer rigorous
imprisonment for 5 years and to pay a fine of Rs.1000/- in default to
undergo rigorous imprisonment for 1 month.
2. The prosecution story as could be gathered from the
material placed on record is thus:-
The appellant/accused is the son of victim Sundarabai
and brother of deceased Shardabai. Sundarabai had two daughters
viz. Shardabai and Durga and one son the accused. Shardabai was
married to one Gautam Godbole. However, since he could not have
any child, quarrel used to take place in between Shardabai and
Gautam Godbole. Gautam used to say that he would perform
another marriage. Durga was married to said Gautam Godbole.
Prior to the marriage, she had eloped with another boy. As the
relations between Durga and Shardabai, the wives of Gautam, were
not cordial, Shardabai came to reside with Sundarabai at village
Dongargaon. The accused, after his marriage, was also residing at
village Dongargaon. However, he left along with his family and
started residing at Virva. It is the prosecution case that there was a
dispute between PW3 Sundarabai and the accused.
3. One Prafulla Shende informed to Mul Police Station in the
morning of 27.05.2011 that between 1.30 and 2 p.m. his maternal
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uncle Rajeshwar Deogade woke him up and told him that
somebody had beaten Sundarabai. He also told that Sundarabai
was raising shouting as "Marle Marle". He went there, saw that
both Sundarabai and Shardabai were assaulted and there were
bleeding injuries to both of them. After receipt of the information,
Police came there, took Sundarabai and Shardabai to Government
Hospsital, Mul. From there, they were brought to the General
Hospital, Chandrapur. After admitting Shardabai and Sundarabai in
the General Hospital, Chandrapur, PW2 Prafulla gave an oral report
below Exh.16. The printed first information report came to be
lodged below Exh.17. On the basis of the investigation, crime came
to be registered being Crime No.67/2011 for the offence punishable
under Section 307 of the Indian Penal Code. On 28.05.2011, the
statement of Sundarabai came to be recorded. On 03.07.2011
Shardabai succumbed to the injuries and hence the offence under
Section 302 of the Indian Penal Code came to be added. After
completion of the investigation, a charge sheet came to be filed in
the Court of the learned Judicial Magistrate First Class, Mul. Since
the case was exclusively triable by the Court of Session, the same
came to be committed to the learned Sessions Judge, Chandrapur.
4. The charges were framed below Exh.8 for the offence
punishable under Sections 302 and 307 of the Indian Penal Code.
The accused pleaded not guilty and claimed to be tried. At the
conclusion of the trial, the learned trial Judge passed the order of
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conviction and sentenced the appellant as aforesaid. Being
aggrieved thereby, the present appeal.
5. Mr. Samundre, the learned counsel appearing on behalf
of the appellant submits that the prosecution case solely rests on
the evidence of PW3 Sundarabai. He states that her testimony is not
credible. He further submits that the first informant has also
turned hostile. It is submitted that in any case the first information
report was lodged against an unknown person.
6. Ms. R.V. Kalia, the learned Additional Public Prosecutor on
the contrary submits that the learned trial Judge upon appreciation
of the evidence, has correctly recorded the finding of guilt and as
such no interference is warranted in the present appeal.
7. With the assistance of the learned counsel appearing for
the appellant and the learned Additional Public Prosecutor, we have
scrutinised the entire evidence on the record.
8. Since the factum of the death of the deceased being
homicidal is not argued before us, it will not be necessary to go into
the evidence in that regard.
9. The prosecution case mainly rests on the evidence of the
injured witness PW3 Sundarabai. No doubt that the conviction could
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be based on the sole testimony of eyewitness if the evidence of the
said witness is found to be cogent, trustworthy and reliable.
10. PW3 Sundarabai is the mother of the deceased. She
stated in her evidence that when on the night of 26/27 th May, 2011,
she was sleeping along with Shardabai in the courtyard of their
house, at around 2 a.m. the accused came. First he gave axe blow
to Sharda. Then he gave axe blow on the head of Sharda due to
which the brain of Sharda protruded.
ig She raised shouting as
"Dhava Dhava". Thereafter accused gave axe blow on her head.
She had blocked his blow by her hands and hence she had
sustained injuries to her hands also. She states that she had also
sustained injuries to her ear. She states as she had raised shouting,
accused ran away and the people gathered there. She had asked
them to inform the Police on phone. PW3 Sundarabai and
Shardabai were taken to General Hospital, Chandrapur and from
there they were immediately shifted to Nagpur. Sharda was
admitted for 8 to 15 days in the Government Hospital at Nagpur.
Thereafter she was again brought to General Hospital, Chandrapur.
She was admitted in the hospital for about 8 days and thereafter
she was taken to home and died after 8 days. From the evidence
of PW3 Sundarabai, motive is sought to be brought on record that
the accused was frequently demanding amount of pension to her.
She further states that sometimes she used to give amount from
her pension to the accused. She further states that the accused
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used to beat her and Sharda if the amount was not given to him.
The accused used to say that he would cultivate the land. However,
all these facts were not stated by her in her first statement. It could
thus be seen that the possibility of these facts being recorded in the
subsequent statement so as to make out a case of motive cannot
be ruled out. These omissions have been duly proved in the cross-
examination of investigating officer PW7 Tularam Madhamwar.
11. It is further to be noted that in her evidence she has
admitted that her statement was recorded in the presence of her
daughter Durga Gautam Godbole. She has further admitted that
after the incident, she was residing with Durga. She has further
admitted that Gautam had read over the statement to her before
she came to the court. She has further admitted that at the time of
the incident, she had slept after switching off the light.
12. It is to be noted that the first information report is lodged
by PW2 Prafulla Shende after the deceased and PW3 were admitted
to the Hospital. The first information report does not name anyone.
PW2, though has admitted of lodging of oral report and the first
information report, has thereafter turned hostile. If we go through
the evidence of PW2 and PW3 together, it can be seen that the first
information report was directed to be lodged by PW3 herself. If the
appellant had really assaulted her, there was no reason as to why
she should not have disclosed name of appellant to PW2 and as
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such there should have been no reason as to why the name of the
appellant could not have been mentioned in the first information
report. In this view of the matter, we find that possibility of PW3
subsequently implicating the present appellant cannot be ruled out.
She has clearly admitted that at the time of giving the statement as
well as at the time of recording the evidence, her surviving
daughter Durga and her husband were with her.
13. Insofar as the evidence with regard to recovery of the axe
is concerned, memorandum under Section 27 of the Indian
Evidence Act below Exh.20 and the seizure panchanama below
Exh.21 have been duly accepted in the evidence of panch witness
PW4 Pravin Nimbalkar. However, it is to be noted that the recovery
of the axe was from the corner of the kitchen in house which was
occupied by others including the appellant. It cannot thus be said
that the recovery was from the place which was not solely within
the knowledge of the appellant and was from a place accessible to
the others. In any case, the Chemical Analyzer's report shows that
no blood stains were found either on the axe or on the clothes
seized from the appellant.
14. In that view of the matter, we find that the prosecution
has not been able to prove the case beyond reasonable doubt. The
accused is entitled to benefit of doubt.
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15. The appeal is allowed. The judgment and order of
conviction passed by the Additional Sessions Judge, Chandrapur, is
hereby quashed and set aside. The appellant is acquitted for the
offence punishable under Sections 302 and 307 of the Indian Penal
Code. The appellant shall be set at liberty forthwith, if not required
in any other case. The amount of fine, if any paid, be returned to
the appellant.
(A.S. Chandurkar, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
