Gangadhar Gajanan Gaurkar (In ... vs State Of Maharashtra, Thr. Pso ...
2017 Latest Caselaw 7709 Bom

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                                                            apeal207.16.odt

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

                 Criminal Appeal No.207 of 2016

  Gangadhar Gajanan Gaurkar,
  Age 35 years, Occupation - Labour,
  R/o Chak Thana (Dighori Phata),
  Tah. Pombhurna, Dist. Chandrapur.                 ... Appellant
                                                        (In Jail)
        Versus

  State of Maharashtra,
  through Police Station Officer,
  Pombhurna,
  Dist. Chandrapur.                                 ... Respondent


  Shri Shantanu Deshpande with Shri A.C. Jaltare, Advocates for 
  Appellant.
  Shri   B.M.   Lonare,   Additional   Public   Prosecutor   for 
  Respondent/State.

               Coram : R.K. Deshpande & Manish Pitale, JJ.

Date of Reserving the Judgment : 20th September, 2017

Date of Pronouncing the Judgment: 29th September, 2017

Judgment (Per R.K. Deshpande, J.) :

1. The learned Additional Sessions Judge-2, Chandrapur,

has convicted the appellant-accused for the offence punishable

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under Section 302 of the Indian Penal Code (IPC) and sentenced

him to suffer life imprisonment and to pay a fine of Rs.1,000/-;

in default, to undergo rigorous imprisonment for three months

more, by his judgment and order dated 26-4-2016 delivered in

Sessions Case No.38 of 2015. Hence, this appeal by the accused.

2. The story of the prosecution is as under :

PW 1 Bayabai Balki is the real sister of the accused, who

reported the incident of death of her mother Shakuntala to the

Police Station Pombhurna, District Chandrapur, on 6-1-2015

at about 14.30 hours. In her oral report at Exhibit 10, she stated

that her brother accused Gangadhar assaulted and killed her

mother, as she refused to give him money for liquor.

Accordingly, the offence punishable under Section 302 of IPC

was registered against the accused vide FIR at Exhibit 11. The

accused was charged that in the intervening night of

5-1-2015 and 6-1-2015 at Mouza Chekthana, Tahsil Pombhurna,

District Chandrapur, he committed murder, intentionally or

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knowingly, causing the death of his mother Smt. Shakuntala

Gajanan Ghaurkar by assaulting her with a wooden rafter on her

person and thereby committed an offence punishable under

Section 302 of IPC. The charge is at Exhibit 6.

3. PW 8 is Yashant Naitam, the first Investigating Officer,

who states that he went to the spot of incident with two panchas

called by issuing notice under Section 175 of the Criminal

Procedure Code (Cr.P.C.). The spot panchanama was prepared

on 6-1-2015 between 15.00 to 15.45 hours at Exhibit 22. The

dead body of Shakuntala was lying on her back having injures to

her face and head. The blood was lying there, her clothes were

having blood stains. The inquest panchanama was drawn at

Exhibit 24 and the dead body was sent for post mortem. The

accused was not on the spot and he was arrested on 7-1-2015

and the arrest form is at Exhibit 34. On the same day, the clothes

of the accused were seized at Exhibit 25 in presence of two

panchas. He recorded the memorandum panchanama

on 13-1-2015 at Exhibit 27 between 15.15 to 15.30 hours, under

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Section 27 of the Evidence Act in presence of two panchas, one

of them was PW 6 Tejraj Mankar. The accused discovered the

wooden weapon Jamkud (used in the process of ploughing),

kept in the compound behind his house, which was seized in

presence of the panchas on 13-1-2015 between 16.05 to

16.45 hours at Exhibit 28. The photographs of the process of

seizure were also taken at Exhibits 35-1 to 35-5. The blood

sample of the accused was taken on 10-1-2015 at Exhibit 29.

The map of the spot of incident was drawn by the Tahsildar at

Exhibit 37. The weapon Jamkud was referred for the opinion of

the Medical Officer under the letter dated 18-1-2015 at

Exhibit 40 and the opinion on the query is dated 19-1-2015 at

Exhibit 18. The further investigation was carried out by

PW 9 Dilip Dolare, the Investigating Officer.

4. PW 9 Dilip, the Investigating Officer, states that he got

the clothes of the deceased along with muddemal seized under

the seizure memo at Exhibit 30 dated 13-1-2015, and on

6-3-2015 he forwarded the same to the Chemical Analyzer. He

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got the statements of three witnesses recorded under Section 164

of Cr.P.C. He states that in the post mortem report, there was no

definite reason about the death and it opined that the death

occurred due to injury to brain or poisoning. He, therefore,

obtained the report of viscera at Exhibit 42 and found that the

death was not due to poisoning. He sent the report to the doctor

with a query and the doctor opined on 31-3-2015 at Exhibit 43

that the probable cause of death is due to sudden

cardio respiratory arrest due to brain injury due to hard and

blunt trauma over head. Thereafter he recorded the statements

of witnesses, in which it was found that the accused demanded

money to his mother for liquor and gave a blow of wooden rod

on her head, which caused her death.

5. The Sessions Court records that the death of Shakuntala

is homicidal. It takes into consideration the evidence of

PW 3 Dr. Devendra Lade, who conducted the post mortem and

submitted the report at Exhibit 17. Exhibit 18, which is a query

report, is also relied upon. The Court rejects the contention of

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the accused raised, relying upon the report of the Chemical

Analyzer at Exhibit 42, that the injuries were sustained to the

deceased by falling down in a drunken condition. It was also

pointed out to the Sessions Court that no external injury below

groin up to the leg and below the neck was found. While

rejecting the contention, the reference is made to the spot

panchanama at Exhibit 22 and the evidence of panch witness

PW 5 Zitu Sidam.

6. The Court also holds that the prosecution has proved

that in the intervening night of 5-1-2015 and 6-1-2015, the

accused intentionally and knowingly caused the death of his

mother Smt. Shakuntalabai by assaulting her by a wooden rafter

(Jamkud) on her person and thereby committed an offence

punishable under Section 302 of IPC. The reliance is placed

upon the evidence of PW 1 Bayabai Balki, the real sister of the

accused; her oral report at Exhibit 10; the FIR at Exhibit 11; the

photographs at Exhibits 12/1 to 12/12; the oral evidence of

PW 2 Ankush Maraskolhe, the neighbourer;

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PW 4 Maroti Mohurle, on the conduct of the accused, and

PW 6 Tejraj Mankar, the panch witness on the discovery under

Section 27 of the Evidence Act.

7. We have heard Shri Shantanu Deshpande, the learned

counsel appearing for the appellant-accused. He has urged that

the Sessions Court heavily relies upon the evidence of

PW 2 Ankush as if he is an eye-witness to the incident and,

according to him, at the most his evidence can be considered on

the circumstance of 'last seen together'. He submits that there is

no dispute that the accused and the deceased were the only

persons at the time of incident. He further submits that the oral

testimony of this witness is not corroborated by any other

evidence and the conviction cannot be based upon his sole

testimony. He submits that the seizure of weapon at Exhibit 27

loses its significance, for the reason that the weapon is fully

described in Exhibit 22, which is the spot panchanama, even

before its seizure.

apeal207.16.odt

8. The learned Additional Public Prosecutor Shri Lonare

supports the findings recorded by the Sessions Court and relies

upon the injuries described by PW 3 Dr. Devendra and the

finding recorded by the Sessions Court that it is a case of

homicidal death.

9. The first question, which is required to be considered, is

whether the death of Shakuntala is homicidal.

PW 3 Dr. Devendra, who conducted the post mortem, opines that

the probable cause of death is due to sudden cardio respiratory

arrest due to brain injury by hard and blunt trauma over the

head as well as due to poisoning, but the exact opinion of the

cause of death was reserved up to the Chemical Analyzer's

report, because viscera and blood sample were sent for chemical

analysis. PW 3 finds the following injuries on the body of the

deceased :

"1) Cleaned lacerated wound over the left frontal eye-brow region measuring 2 x 1 x 1 cm. Depth upto the skull bone. The fracture left the frontal lobe

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haemorrhage, measuring up to 3 x 3 cm.

2) Occipital lobe haemorrhage, measuring 4 x 3 cm.

               3)     Head parietal haemorrhage of 3 x 3 cm.


               4)     Third   right   rib   fracture   leading   to   right   lung  

ruptured bleeding to haemorrhage. Due to that left lung collapsed."

PW 3 Dr. Devendra opines that all the above injuries might have

been caused by a hard and blunt object. A query report was

called from this witness on 18-1-2015 at Exhibit 40 in respect of

the weapon seized, i.e. Jamkud, in response to which he opines

at Exhibit 18 that the "injuries received over head in PM report

may be caused by this weapon". In the cross-examination, he

states that column 17 in the post mortem report is about the

external injuries. He denies that there were no external injuries

and, therefore, he did not mention those injuries in column 17.

He states that "It is true that cardio respiratory failure may occur

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due to haemorrhage fracture".

10. The Chemical Analyzer's report at Exhibit 42 in respect

of viscera of deceased Shakuntala shows that it contains

(103) miligrams and (90) miligrams of Ethyl alcohol per

100 grams respectively. Upon receipt of this viscera report,

PW 3 Dr. Devendra finally opines that the probable cause of

death is due to sudden cardio respiratory arrest due to brain

injury due to hard and blunt trauma over the head, which is at

Exhibit 43. The evidence of Investigating Officer PW 8 Yashwant

shows that in the cross-examination, he deposed that he went to

the spot and found the house to be newly constructed and the

plaster was to be done. He also found that nearby the

construction, the material like gitti, sand, etc., was lying.

11. In our view, with the aforestated evidence on record, it

is not possible to arrive at a definite conclusion that the death of

the deceased was homicidal. The opinion of PW 3 Dr. Devendra

is that the probable cause of death is due to sudden

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cardio respiratory arrest due to brain injury by hard and blunt

trauma over the head. On query being made with reference to

the weapon seized, i.e. Jamkud, he states that the injuries on

head in PM report may be caused by this weapon. He states that

cardio respiratory failure may occur due to haemorrhage

fracture. The deceased was aged about 60 to 65 years. The

deceased was also found to be in a drunken condition. The

place where she fell found to contain construction material, like

gitti, sand, etc. PW 5 Zitu Sidam, a Panch witness on spot

panchanama at Exhibit 22, states that construction of the house

of the accused was completed and the construction material was

lying there. The statement of the accused under Section 313 of

Cr.P.C. is that the construction of the house was going on, the

material was lying in front of the house and the deceased fell

down on the material and sustained injuries. In view of such

situation, it is not possible to record a definite finding that the

death is homicidal. The benefit of doubt has to be given to the

accused.

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12. The Sessions Court further considers the question as to

whether the accused was the assaulter, who killed his mother.

PW 1 Bayabai is the real sister of the accused, who resides at

Ballarpur. The incident occurred at new Dighori. She states that

she received the phone call from the accused stating that the

mother is not acting well and, therefore, she should come

immediately. She further states that the accused was saying as

to whether she lives or dies, he cannot say. PW 1, therefore,

started from Bhimani and reached new Dighori between 10.00 to

11.00 hours on 6-1-2015. After reaching home, she saw that her

mother was lying dead having injuries everywhere on her face.

She found that the accused was in a drunken condition and

suspected that he might have beaten her mother because she

might not have given money for liquor. She, therefore, went to

Pombhurna Police Station and lodged the report at Exhibit 10.

In the cross-examination, she states that the accused might have

assaulted her mother. In our view, except showing motive, the

evidence of this witness along with the report lodged by her,

does not in any manner establish the connection of the accused

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with the crime.

13. The Sessions Court heavily relied upon the evidence of

PW 2 Ankush, who claims that his house is situated after 30 feet

vacant plot from the house of the accused. He states that the

incident occurred on 5th of January 2015 when he returned

home between 7.30 to 8 p.m., and when he was cleaning his

hands and legs in the bath room, at that time the accused was

coming in a drunken condition uttering something. The accused

went in front of the door of his house and started calling his

mother by saying "Darwaja Khol, Darwaja Khol". The accused

might have opened the door and went inside. He was abusing

his mother and the witness heard the sound of his mother that

"Nako Maru Dada, Nako Maru Dada". After some time, the

sound stopped. He claims to have heard the hick-ups of the

mother of the accused. Thereafter, the witness took meals and

slept. He further states in his examination-in-chief that on the

next day when he returned from his job on construction work, he

found the people gathered in front of his house and they were

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saying that the mother of the accused had died. The wife of the

accused had gone to her maternal house two days before the

incident. In the cross-examination, the witness states that he

had a quarrel with the accused and was not on talking terms

with him.

14. In our view, PW 2 Ankush cannot be characterized as an

eye-witness, though it is so urged by the learned Additional

Public Prosecutor. The accused himself in his statement under

Section 313 of Cr.P.C. admits his presence in the house along

with his mother. The post mortem report does not give the time

of death. PW 2 acquires the knowledge of the death of the

deceased in the night of 6-1-2015 after returning from his job. It

is not possible to believe that PW 2 could hear the hick-ups of

the deceased from such a long distance. The accused and PW 2

were not on talking terms, as PW 2 had a quarrel with the

accused. It is, therefore, not possible to rely upon his sole

testimony without corroboration on the aspect of what happened

on the date of incident and record the finding of conviction.

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15. The reliance is placed upon the seizure memo at

Exhibit 27 in respect of weapon Jamkud. PW 6 Tejraj is a panch

witness on the seizure and PW 8 Yashwant, the Investigating

Officer, conducted the seizure on 13-1-2015 between 16.05 to

16.45 hours. The evidence of these two witnesses and the

seizure memo indicate that the accused discovered the butt of

plough concealed under the Bor tree in the thorny compound on

the back side of the house of the accused. It is 15 inches in

length and at the center it is 7.5 inches in width. It is shown

that the blood stains were found on this weapon.

16. The Sessions Court appears to have missed the

important fact in Exhibit 22, which is the spot panchanama

conducted on 6-1-2015 between 15.00 to 15.45 hours. In Item 4

of this spot panchanama under the head "Type of Crime", "Major

Head" is shown "Janawarache Jamkud Marun". The spot

panchanama itself shows the weapon used for assault on the

deceased. The accused was arrested on 7-1-2015, i.e. on the

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next day after the spot panchanama. The confessionary

statement under Section 27 of the Evidence Act was recorded on

7-1-2015 at 15.15 hours and discovery is at 16.05 hours. This

raises a serious doubt to accept the seizure, as a circumstance in

the chain of circumstances.

17. The weapon used, i.e. Jamkud, was sent to the Chemical

Analyzer along with the clothes of the accused, which were

seized. The blood samples of the deceased as well as the

accused were taken. The blood group of the deceased as well as

the accused is discovered as 'B'. The explanation furnished by

the accused that he lifted his mother after she fell down, shows

that the blood stains on the clothes of the accused may have

occurred during the course of lifting. The reports of the

Chemical Analyzer are not sufficient to connect the accused with

the crime.

18. In the decision of the Apex Court in the case of Sujit

Biswas v. State of Assam, reported in (2013) 12 SCC 406, it has

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been held in para 18 as under :

"18. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."

Keeping in view the aforesaid law laid down by the Apex Court,

it has to be held in the present case that the circumstances

brought on record are not conclusive in nature so as to be

consistent only with the hypothesis of the guilt of the accused.

We will have, therefore, to allow this appeal by setting aside the

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conviction and acquitting the accused of the offence punishable

under Section 302 of IPC.

19. In the result, the judgment and order dated 26-4-2016

passed by the learned Additional Sessions Judge-2, Chandrapur,

in Sessions Case No.38 of 2015, is hereby quashed and set aside.

Accused- Gangadhar Gajanan Gaurkar is acquitted of the offence

punishable under Section 302 of IPC and he should, therefore, be

released forthwith, if not required in any other case.

              (Manish Pitale, J.)                  (R.K. Deshpande, J.)



   Lanjewar, PS