Bombay High Court
Umesh Rajaram Samant (Since ... vs The State Of Maharashtra on 23 December, 2021
Bench: S.S. Shinde, Surendra Pandharinath Tavade
Digitally signed by
SHAGUFTA Q
SHAGUFTA PATHAN
Q PATHAN Date: 2021.12.23
15:45:40 +0530
Apeal-423-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 423 OF 2013
Late Umesh Rajaram Samant
Through his legal heirs;
1A) Samruddhi Umesh Samant,
Aged 21 years, Occ. Education,
R/o. Room No.27, First Floor,
Old Nurses Quarters, School of Nursing,
K.E.M. Hospital, Parel,
Mumbai 400 012
1B) Mayur Umesh Samant,
Aged 16 years, Occ. Education,
R/o. Gopal Niwas, Harkul Khrud,
Mohul, Tal. Kankawali,
Dist. Sindhudurg - 416 602,
Minor through Guardian
Applicant No. 1 above ...Appellants
Versus
The State of Maharashtra
through the Police Inspector,
Police Station, Nivati,
District Sindhudurg ...Respondent
Mr. Amit A. Mane a/w Mr. Sagar A. Mane i/b Mr. N. V. Bandiwadekar for
the Appellants
Mr. S. S. Hulke, A.P.P for the Respondent-State
CORAM : S. S. SHINDE &
SURENDRA P. TAVADE, JJ.
RESERVED ON : 15th DECEMBER 2021
PRONOUNCED ON : 23rd DECEMBER 2021
SQ Pathan 1/14
Apeal-423-2013.doc
JUDGMENT (Per S. S. Shinde, J.) :
1 Heard learned counsel for the appellants and the learned A.P.P
for the respondent-State.
2 By this appeal, the appellant/accused has challenged the
judgment and order dated 12th March 2013 passed by the learned Additional
Sessions Judge, Sindhudurg at Oros, in Sessions Case No. 18 of 2012. Vide
the said judgment and order, the learned Additional Sessions Judge has
convicted the appellant/accused for the offence punishable under Section
302 of the Indian Penal Code (`IPC') and sentenced him to suffer rigorous
imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment
of fine, to suffer simple imprisonment for five months.
3 At the outset, it is necessary to mention that the
appellant/accused, while undergoing the sentence, died on 29 th November
2020, after pronouncement of the judgment and order by the Sessions
Court. In normal course, upon death of appellant/accused, appeal would
abate, however, in the present case, pursuant to the order dated 16 th
November 2021, the legal representatives of the appellant/accused i.e.
SQ Pathan 2/14
Apeal-423-2013.doc
daughter and son of the appellant/accused are brought on record, to pursue
the appeal for the cause of justice, by invoking provision to Section 394 of
the Cr.P.C.
4 The facts in brief as are necessary for deciding the appeal can
briefly be stated as under:
The appellant and the deceased-Vaishali were husband and
wife. They were residing at Village Parule Manjardewadi, Taluka Vengurla,
District Sindhudurg. The incident is alleged to have taken place on 16 th
February 2012 at about 11:30 a.m at their residence at Village Parule,
Manjardewadi. It is alleged by the prosecution that the appellant/accused
was working as Conductor in M.S.R.T.C. One Mahesh Gopal Madhav, a
friend of the appellant/accused had come to the appellant's house on 14 th
February 2012 at about 7:00 p.m. At that time, Vaishali,
appellant/accused's wife (deceased) and their children were in the house,
while the appellant/accused was on duty at the relevant time. It is stated by
the prosecution that said Mahesh Madhav slept at the appellant/accused's
house on 14th and 15th February 2012 during night time. It is alleged that on
the next day morning i.e. on 16 th February 2012 at about 11:30 a.m, the
appellant/accused came home from his duty and after some time, asked his
SQ Pathan 3/14
Apeal-423-2013.doc
wife-Vaishali, who was cutting vegetables at the relevant time, as to why
did she suppress the fact that Mahesh Madhav had slept at their house on
14th February 2012. The appellant/accused, dissatisfied by the reply given
by Vaishali, got annoyed and took out a scythe (koyta) from the place
beneath the TV and gave a blow on the head of Vaishali by means of said
koyta from back side. Mahesh, on seeing the said incident, fled to the
mango orchard. However, the appellant/accused caught hold of Mahesh
and threatened him not to disclose the incident to anyone, else, he would
kill him like Vaishali.
It is the case of the prosecution that on the day of incident, at
about 1:00 p.m, one Ghanshyam @ Nilesh Vinayak Samant had been to the
house of the appellant/accused and had seen that Vaishali was lying in a
pool of blood in the kitchen room and some cut vegetables were lying near
the body of Vaishali. The said Ghanshyam had asked the appellant/accused
as to what happened, to which, appellant/accused replied that he did not
know anything, as he had been to jungle to bring wood. At about 2:00 p.m,
the said Ghanshyam brought Dr. Dipak Thakur at the house of the
appellant/accused. The said doctor on examining Vaishali, declared her
dead. It is the case of the prosecution that said Ghanshyam lodged a report
against unknown person.
SQ Pathan 4/14
Apeal-423-2013.doc
Pursuant to the report filed by Ghanshyam, a Crime No. 2/12
was registered against unknown person for the offence punishable under
Sections 452, 454 and 302 of the IPC. During investigation, the
appellant/accused was arrested on 17th February 2012. The clothes of the
deceased were seized under panchanama; the spot panchanama of the
offence was prepared; the koyta having blood stains was recovered from the
kitchen room of the appellant/accused's house, the inquest panchanama was
prepared and the Medical Officer carried out post-mortem examination on
the dead body of Vaishali.
According to the prosecution, two days after the incident i.e. on
18th February 2012, said Mahesh Madhav approached the police and
disclosed the said incident, pursuant to which, on 19 th March 2012, his
statement came to be recorded before the Judicial Magistrate under Section
164(5) of Cr.P.C. On 20th February 2012, clothes of the accused were
seized. After completion of investigation, the charge-sheet was filed and
charge was framed against the appellant/accused for the offence punishable
under Section 302 of the Indian Penal Code.
The appellant/accused pleaded not guilty and claimed to be
tried. The defence of the appellant/accused was that of denial and of false
SQ Pathan 5/14
Apeal-423-2013.doc
implication. It is the case of the appellant/accused that Vaishali and
Mahesh Madhav were in illicit relationship.
The prosecution, in support of its case, examined as many as 7
witnesses. The Trial Court, after considering the evidence adduced by the
prosecution, convicted the appellant/accused for the offence as aforestated
in para 2 above.
5 Learned counsel for the appellant/accused challenges the
legality and validity of the impugned judgment and order. He submits that
the eye-witness i.e. P.W 1 has not supported the prosecution case. Learned
counsel submits that although PW 1 has admitted that he was visiting
appellant/accused's house during day and night time, however, he has
denied that he visited appellant/accused's house two to four days prior to
the date of incident. He has stated that he had not seen the incident and that
he was not present at the house but was in the jungle at the relevant time.
Learned counsel submits that PW 1, in his cross-examination has accepted
that he was present on the spot and also stated that he was threatened by the
police to make statement against the appellant/accused, lest, he would be
made co-accused in the case. Learned counsel submits that there is no
SQ Pathan 6/14
Apeal-423-2013.doc
corroborative evidence to support the evidence of PW 1. Learned counsel
submits that there is delay in recording the statement of PW 2 i.e. his
statement was recorded after 4 to 5 days of the incident and his evidence is
also not corroborated.
It is submitted by the learned counsel for the appellant/accused
that the doctor who conducted the post-mortem on the body of Vaishali, is
not examined. The post-mortem report shows the cause of death due to
`hypovolemic shock due to multiple skull fracture with severe brain injury',
however, it is silent on the time of death and opinion about the weapon used
in the offence.
Learned counsel submits that the prosecution could not have
relied on the documents i.e the cause of death certificate (Exhibit 22), the
post-mortem report (Exhibit 23) and the spot panchanama (Exhibit 19), as
the same were not put to the appellant/accused while recording his
statement under Section 313 of the Code of Criminal Procedure (`Cr.P.C).
He submits that the prosecution has failed to prove the homicidal death of
Vaishali (deceased).
SQ Pathan 7/14
Apeal-423-2013.doc
Learned counsel submits that it is the prosecution case that the
appellant/accused, on the day of incident, questioned the deceased as to
why did she suppress the fact that Mahesh Madhav had slept at their house
during night on 14th February 2012 and that the appellant/accused,
dissatisfied by the reply given by Vaishali, got annoyed and took out a
scythe (koyta) from the place beneath the TV and gave a blow on the head
of Vaishali by means of said koyta from back side. Learned counsel submits
that the best witness i.e. daughter of the appellant/accused, who was aged
13 years at the relevant time, is not examined by the prosecution to prove
the presence of Mahesh Madhav at the residence of the appellant/accused.
Thus, adverse inference may be drawn against the prosecution on part of
motive, presence of PW 1 and appellant/accused and deceased last seen
together.
Learned counsel further submits that the investigation is not
fair investigation, inasmuch as, the appellant/accused was arrested on 17th
February 2012, when there was no evidence against the appellant/accused
and that the statement of the alleged sole eye-witness was recorded only
after the arrest of the appellant/accused.
SQ Pathan 8/14
Apeal-423-2013.doc
Learned counsel submits that in view of the above, the
impugned order of conviction and sentence dated 12 th March 2013 passed
by the learned Sessions Judge, Sindhudurg, be set-aside and the
appellant/accused be acquitted of all the charges levelled against him.
6 Learned A.P.P invites attention of this Court to the findings
recorded by the trial Court and submits that the trial Court has properly
appreciated the evidence on record. Star witness of the prosecution case is
PW 1-Mahesh Gopal Madhav, who has actually witnessed the incident.
The death of Vaishali is homicidal and the post-mortem report has been
admitted by the accused. Therefore, learned A.P.P submits that appeal may
be dismissed.
7 We have given due consideration to the submissions of learned
counsel appearing for the appellant/accused and the learned A.P.P appearing
for the State. With their able assistance, we have carefully perused the
notes of evidence and also the findings recorded by the trial Court.
8 In order to prove the prosecution case, the prosecution
examined 7 witnesses. One Mahesh Gopal Madhav was examined as
SQ Pathan 9/14
Apeal-423-2013.doc
PW 1. In his examination-in-chief, so far as main act of the accused is
concerned, he stated that he was present in the house of the accused at the
relevant time and there was exchange of words between appellant/accused
and his wife-Vaishali. Thereafter, accused has removed scythe (koyta) from
the place beneath the TV. The accused assaulted on the head of Vaishali by
means of said weapon from her back side. PW 1-Mahesh fearing that
accused may assault him, fled away towards jungle. He further deposed
that one hour thereafter, the accused brought him at his house from the
jungle. The accused threatened him that if he would disclose the said
incident to anybody, then he will kill him like Vaishali.
In his cross-examination, he stated that when his statement was
recorded, he did not tell anything about the incident to the police. He
further deposed that the police gave threat to him that he should depose
against the accused before the Court. He further stated that even the
statement under Section 164 Cr.P.C. before the Judicial Magistrate was
recorded under the pressure of police. Judicial Magistrate did not ask any
question to him whether there was a pressure of police upon him. He
further deposed that he had not seen the accused while beating on the head
of Vaishali by scythe from her back side. At the time of happening of the
incident, he was cutting woods in the jungle.
SQ Pathan 10/14
Apeal-423-2013.doc
Upon careful perusal of cross-examination of PW 1, it is
abundantly clear that he has not supported the prosecution case. It appears
that after the actual incident, the concerned Investigating Officer recorded
his statement after 5 to 6 days. As deposed by PW 1, he had given said
statement before the police supporting the prosecution case under the
threats given by the police. The statement recorded before the Magistrate
was also under the pressure of police. In substance, he has not supported
the prosecution case. There is no other evidence on record brought by the
prosecution in the nature of eye-witnesses who have actually witnessed the
incident.
9 The prosecution examined Ghanshyam Vinayak Samant as PW
2. In his deposition, he stated that after completion of his routine work,
when he was proceeding to his house, one Mr. Vitthal Madaye asked him to
stop. He told PW 2 that something has happened to the wife of accused-
Umesh. Thereafter, PW 2 and Vitthal went to the house of the accused.
They saw that Vaishali was lying on the door of the kitchen. Blood was
oozing from her injury. Accused-Umesh was there. He asked the accused
as to how Vaishali suffered the injuries, in reply, he had stated that he was
not aware how she had sustained the injuries, since he had been to jungle
SQ Pathan 11/14
Apeal-423-2013.doc
for bringing wood and he does not know anything about the incident. PW
2-Ghanshyam informed the police about the death of Vaishali and
thereupon, FIR came to be registered.
10 The other witness Mahadev Madwal (PW 3.) who was
examined to prove the spot panchanama, has turned hostile.
11 The prosecution examined Vishnu Khobrekar (PW 4), who
took the custody of the muddemal property and carried it to the Chemical
Analyser for analysis.
12 The prosecution examined Vidyadhar Walawalkar (PW 5),
father of the deceased Vaishali. In his deposition, he has stated that accused
asked for money in the year 2009 and upon refusal, he got annoyed. From
the entire evidence of PW 5, it can safely be stated that he has deposed in
chief without stating any specific act of cruelty or mental harassment by
appellant/accused to his wife Vaishali.
13 The Police Inspector-Uday Balakrishna Aafale, who conducted
the investigation is examined as PW 7 by the prosecution.
SQ Pathan 12/14
Apeal-423-2013.doc
14 It appears that since the medical report has been admitted by
the defence, the Medical Officer was not examined by the prosecution.
However, there is no dispute that Vaishali died homicidal death. In the
post-mortem report, the cause of death of Vaishali has been mentioned as
under :
"Hypovolemic shock due to multiple skull fracture with
severe brain injury".
15 Except the evidence of PW 1 discussed hereinabove, there is
nothing brought on record to suggest that at the relevant time of actual
incident, the appellant/accused was present in the house. However, as
discussed hereinabove, PW 1 has turned hostile and did not support the
prosecution case.
16 In that view of the matter, we are of the considered view that
there is no substantive or direct piece of evidence to support the prosecution
case and therefore, the prosecution case should fail. The Chemical
Analyser's report received by the Investigating Officer suggestive of blood
stains of deceased on the clothes of accused is of no use, in absence of
substantive piece of evidence on record.
SQ Pathan 13/14
Apeal-423-2013.doc
17 In the light of of evidence brought on record and the discussion
in the foregoing paragraphs, we are of the considered view that the
impugned judgment and order of conviction of the appellant/accused cannot
sustain. Hence, the following order :
ORDER
(1) The impugned judgment and order dated 12th March
2013 passed by the learned Additional Sessions Judge, Sindhudurg at
Oros, in Sessions Case No. 18 of 2012, is set-aside.
(2) The appeal is allowed and stands disposed of
accordingly.
[SURENDRA P. TAVADE, J.] [S.S SHINDE, J.]
SQ Pathan 14/14
