Pandurang Chindhu Aagle (In Jail) vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 7778 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR



                  CRIMINAL APPEAL NO.146 OF 2016
                                ...


Pandurang Chindhu Aagle,
Aged about 65 years,
Occupation: Cultivator,
R/o Goregaon, Tahsil Goregaon,
District Gondia.                                  ..                APPELLANT


                               .. Versus ..

State of Maharashtra,
Through its Police Station Officer,
Goregaon, Police Station Goregaon,
District Gondia.                                  ..             RESPONDENT


Mr. Amit Kukday, Advocate (Appointed) for Appellant.
Mr. S.A. Ashirgade,    Additional Public Prosecutor                                       for
Respondent.

                               ....


CORAM        : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON  : September 28, 2017
PRONOUNCED ON : October 4, 2017.



JUDGMENT (per Manish Pitale, J. )

The appellant herein has been convicted and

sentenced for life imprisonment under Section 302 of the

Indian Penal Code (IPC) for the murder of his son, wife and

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daughter-in-law. The appellant has been found guilty mainly

on the testimony of his granddaughter (PW1).

2. As per the prosecution story, the appellant was living

with his wife and son Channalal as also daughter-in-law and

their children in one part of the house at Goregaon in district

Gondia. In the other half of the house, the elder son of the

appellant was residing. PW1 Pooja, the granddaughter of the

appellant, had come with her sister to stay during the vacation

with her maternal uncle Channalal (son of the deceased) for

about a month.

3. On 12.05.2014, PW1 Pooja was sleeping in the

Chhapari (courtyard) of the house and at about 5 a.m. the

appellant came with a Ghan (iron hammer) and upon entering

the house, he assaulted his son Channalal on his head and

further assaulted his wife and daughter-in-law with the iron

hammer thereby seriously injuring all the three. It is further

alleged that the appellant poured kerosene on his wife and

daughter-in-law and set them on fire by lighting a match stick.

Thereafter, the appellant walked out of the house where PW2

Raghunath, a neighbour, met him and to whom the appellant

confessed about the aforesaid act committed by him. It is also

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alleged that PW4 Urmilabai, another neighbour living in a

house adjacent to the said house where the incident occurred,

saw the appellant standing at the door of the house having an

iron hammer in his hand. It is further alleged that the injured

persons were taken to the hospital where all three of them

died.

4. The first information report (FIR) pertaining to the

said incident was registered on the same day at about 5.45

a.m. on the complaint of PW1 Pooja. PW9 Ravindra Shinde,

Police Inspector, the investigating officer in the present case,

reached the spot of the incident and prepared the spot

panchanama. PW6 Dr. Atul Patil conducted the post mortem

on the dead bodies, which revealed severe external and

internal injuries to the deceased persons.

5. The appellant was arrested and upon his

memorandum under Section 27 of the Evidence Act being

executed, the iron hammer was recovered from under the

"Diwan" (bed) and seizure memo regarding same was

executed on 13.05.2014. The investigating officer (PW9)

completed the investigation and submitted charge sheet

against the appellant. It was brought on record during

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investigation that the daughter-in-law of the appellant had

given a statement to PW3 Ashok, Head Constable, in the

hospital giving description of the incident. Before recording the

said statement, an endorsement was taken from the Medical

Officer regarding fitness of the said victim for giving such

statement and it was claimed by the investigating officer that

such statement dated 12.05.2014 was a dying declaration.

6. The prosecution examined nine witnesses to prove its

case and reliance was placed on the evidence of the

eyewitness PW1 Pooja as also the depositions of the

neighbours PW2 Raghunath and PW4 Urmilabai along with the

said dying declaration dated 12.05.2014 and the medical

evidence on record. The Sessions Court found the evidence of

PW1 Pooja as also the evidence of the aforesaid neighbours as

sufficient to bring home the guilt of the appellant. The

Sessions Court relied upon the seizure of the iron hammer and

the chemical analysis report to hold that there was sufficient

material on record proving the guilt of the appellant.

Accordingly the Sessions Court convicted and sentenced the

appellant under Section 302 of the IPC.

7. Mr. Amit Kukday, learned counsel appointed for the

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appellant submitted that the evidence of PW1 Pooja was not

reliable because it was improbable that she could have

witnessed the entire sequence of events from the courtyard. It

was further submitted that there was no statement in her

evidence regarding who opened the door of the house

facilitating the entry of the appellant and further that the

evidence of PW1 Pooja was contradicted by the so called dying

declaration dated 12.05.2014 of the deceased daughter-in-law

of the appellant. It was further submitted that the dying

declaration was not believable because the time recorded in

the endorsement of fitness given by the Doctor was over

written. It was further submitted that the description of the

incident by PW1 Pooja did not match with the map of the house

at Exh.40 showing the positioning of the three victims of the

assault. It was submitted that the evidence was full of

contradictions and that therefore, the impugned judgment and

order of the Sessions Court deserved to be set aside.

8. On the other hand, Mr. S.A. Ashirgade, learned

Additional Public Prosecutor appearing on behalf of the

respondent-State, submitted that as there was an eyewitness

to the incident and the medical evidence corroborated such

evidence, the conviction and sentence imposed upon the

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appellant was justified and that the appeal was required to be

dismissed.

9. We have heard the learned counsel for the parties

and we have perused the record. We find that PW1 Pooja is the

only eyewitness to the incident, as the neighbours PW2 and

PW4 claimed to have seen the appellant outside the house

where the incident took place. The other witnesses are

pertaining to the alleged dying declaration of the daughter-in-

law of the appellant, the panch witnesses for the seizure

memo, spot panchanama, the Doctor as regards medical

evidence and finally the investigating officer.

10 A perusal of the map of the spot of the incident

(Exh.40) gives the location of the front courtyard where PW1

Pooja was sleeping and then the three rooms of the house

located one behind the other and finally the backyard of the

house. If the evidence of PW1 Pooja is analysed in the context

of the aforesaid map, it appears doubtful that she would have

witnessed the entire incident from the front courtyard. As per

the version of PW1 Pooja, she woke up on hearing the cries of

the daughter-in-law of the appellant. She claims to have seen

the appellant giving blow of iron hammer on the head of his

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son Channalal and then he allegedly poured kerosene on his

wife and daughter-in-law and set them on fire. The map

(Exh.96) on record shows that the wife of the appellant was

assaulted in the backyard and that the daughter-in-law was in

the last room leading to the backyard and that the son of the

appellant was assaulted in first room upon entering the house.

It is not stated by PW1 Pooja as to who opened the door of the

house facilitating the entry of the appellant for carrying out the

said assault. It is also not clear how PW1 Pooja could see what

was happening in the backyard from the place where she was

sleeping i.e. the front courtyard. At this juncture a comparison

with the description of the same incident in the alleged dying

declaration (Exh.14), assumes importance. This is because in

the said alleged dying declaration given by the daughter-in-law

of the appellant, it is stated that she had gone to the toilet in

the backyard and when she came out, her father-in-law i.e. the

appellant came into the house with the iron hammer in the

hand and assaulted her. This version of the incident would

place the daughter-in-law in the backyard, as opposed to the

version of PW1 Pooja, wherein she has claimed that the wife of

the appellant was in the backyard and not the daughter-in-law.

The description of the incident in the two versions is clearly

contradictory.

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11.           Apart       from   this,   the   alleged    dying        declaration

(Exh.14) shows that under the signature of the Medical Officer

endorsing the daughter-in-law of the appellant being fit to give

a statement, the time recorded has been overwritten. It

appears that 8.45 a.m. has been overwritten as 6.40 a.m. This

is perhaps because the police report forwarded with the dead

body for post mortem examination of the daughter-in-law of

the appellant (Exh.47) records that she died at 8.10 p.m. This

clearly renders the said alleged dying declaration (Exh.14) as

an extremely dubious document. Thus, apart from the fact

that the version in the dying declaration contradicts the version

of PW1 Pooja, the said alleged dying declaration is inherently

unreliable and it cannot be believed.

12. The evidence of the two neighbours PW2 Raghunath

and PW4 Urmilabai shows that they saw the appellant outside

the house and only PW4 says that he was having hammer in

his hand. In this situation, the crucial evidence to connect the

appellant with the said incident of assault is the recovery of the

iron hammer and its chemical analysis report. A perusal of the

spot panchanama (Exh.18) dated 12.05.2014 shows that there

is no mention of the iron hammer. The seizure memo pursuant

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to the statement of the appellant under Section 27 of the

Evidence Act shows the recovery of the iron hammer. This

document (Exh.25) records that the iron hammer is recovered

from beneath the Diwan (bed) and that it is stained with blood.

The same was sent for chemical analysis by requisition

(Exh.50). By this document 31 exhibits were forwarded for

chemical analysis including the iron hammer and the clothes of

the appellant. The iron hammer is recorded at Exh.27, while

the clothes of the appellant i.e. underwear and baniyan are

shown as Exhs. 28 and 29. The said document records that at

Exh.27 iron hammer with wooden handle is forwarded, but

there is no mention of blood stains on the same.

13. The chemical analysis report dated 11.07.2014

(Exh.53) shows that no blood was detected on Exh.27 i.e. the

iron hammer. In the said report, Exhs. 28 and 29 are not even

mentioned as regards any blood stains or otherwise. Thus,

neither the clothes allegedly worn by the appellant at the time

of the incident nor the iron hammer allegedly used by him to

carry out the assault, are found to have any blood stains.

There is nothing to connect the appellant with the use of the

iron hammer to carry out the assault. This aspect of the

evidence assumes significance, in view of the contradictions in

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the versions of the incident given by PW1 Pooja and the alleged

dying declaration (Exh.14).

14. In the statement given by the accused under Section

313 of the Cr.P.C., it is stated by the appellant upon his wife

and daughter-in-law quarreling with each other, his son beat up

both of them, burnt them and then injured himself with the iron

hammer and that the appellant was falsely implicated. As

there is absence of any evidence of blood stains on the clothes

of the appellant and the iron hammer allegedly used by him in

the assault, this statement of the appellant-accused under

Section 313 of the Cr.P.C. becomes relevant.

15. We have already referred to the version of PW1 Pooja

appearing doubtful when analysed in the context of the map of

the spot of the incident (Exh.40) because the positioning of the

victims in various parts of the house and the manner in which

the assault was allegedly carried out, all appear to be doubtful.

The evidence of PW2 Raghunath and PW4 Urmilabai does not

really corroborate the description of the incident by PW1 Pooja.

Therefore, their version only shows the presence of the

appellant at the spot of the incident. In fact, the appellant

himself has not disputed his presence because in his statement

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under Section 313 of the Cr.P.C., in response to the question as

to what he had to say regarding statement of PW2 Raghunath

that the appellant was present in front of the house, he has

stated that "it is correct". Thus, the appellant has not disputed

his presence, but, at the same time it is for the prosecution to

prove the fact that the appellant was responsible for the

incident in question by placing on record convincing evidence.

16. The manner in which the alleged dying declaration

(Exh.14) has been tampered with by overwriting of the time

recorded under the endorsement given by the Medical Officer

and the inherent contradictions between the Exh.14 and the

evidence of PW1 Pooja, renders the evidence relied upon by

the prosecution as doubtful. The evidence of the witnesses

also does not show as to who extinguished the fire in which

the wife and daughter-in-law were engulfed. The neighbours

i.e. PW2 and PW4 claimed to have reached the spot

immediately after the incident, but, they also do not make any

reference to this aspect, which renders their versions doubtful.

The Sessions Court has heavily relied upon the evidence of

PW1 Pooja to hold that the appellant was guilty. The Sessions

court has referred to the chemical analysis report, but, it has

failed to appreciate that the said report does not show any

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material to connect the appellant with the use of the iron

hammer for carrying out the assault on the three victims.

Although the manner in which the victims have been assaulted

is ghastly, the evidence on record falls short of proving that it

was only the appellant who was responsible for the same.

17. In view of the above, we hold that the Sessions Court

was not justified in convicting and sentencing the appellant

under Section 302 of the IPC. Accordingly, we allow this appeal

and set aside the impugned judgment and order dated

01.06.2015 passed by the Sessions Court and we acquit the

appellant of the charges levelled against him. The appellant be

released from custody forthwith, if not required in any other

case. The amount of fine, if any paid, be refunded to the

appellant.

18. The fees of the learned counsel appointed for the

appellant are quantified at Rs.5000/- (Rs. Five Thousand only).

      (Manish Pitale, J. )                     (R.K. Deshpande, J.)
                                       ...
halwai/p.s.