Bombay High Court
The State Of Maharashtra vs Dashrath Krishna Waghwankar on 23 December, 2021
Bench: S.S. Shinde, Surendra Pandharinath Tavade
Sherla V.
VISHWANATH apeal.282.2001 (J).doc
SATYANARAYANA
SHERLA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
VISHWANATH CRIMINAL APPELLATE SIDE
SATYANARAYANA
SHERLA
Date: 2021.12.23
14:55:56 +0530 CRIMINAL APPEAL NO.282 OF 2001
The State of Maharashtra ... Appellant
(org. accused)
Vs.
Dashrath Krishna Waghwankar
age 24 years, Occu.: Labour work
r/of Ruthetali, Tal. Rajapur
District Ratnagiri
... Respondent
New address:
Room No.9, Ground floor,
Datta Sad Gowari building, Kamothe Gaon
kamothe, Panvel, Navi Mumbai
Mr.S.S. Hulke, APP, Appellant - State
Mr.Atal B. Dubey with Mr.Rahul Mishra for Respondent - accused
CORAM: S.S. SHINDE &
SURENDRA P. TAVADE, JJ.
JUDGEMENT RESERVED ON: DECEMBER 8, 2021
JUDGEMENT DELIVERED ON: DECEMBER 23, 2021
JUDGEMENT (PER S.S. SHINDE, J.):
1. This appeal is filed by the appellant-State challenging the
judgment and order dated 11th January, 2001, passed by the
learned Additional Sessions Judge, Ratnagiri in Sessions Case
No.18 of 1995, thereby acquitting the accused for the offence
punishable under Section 302 of the Indian Penal Code, 1860.
apeal.282.2001 (J).doc
2. The prosecution case in short can be summarized as
under:-
The accused Dashrath and the complainant Madhukar
(PW1) are the residents of village Runthetali. Deceased Asha was
the minor daughter of the complainant Madhukar Ghanekar. On
13th July, 1994, Asha and her cousin Jayashri (PW2), went to
Patkaltali for grazing their cattle. The accused Dashrath was also
present there with his cattle. At about noon, Asha went to bring
back her two bulls which had gone to the place where the accused
was grazing his cattle. However, since Asha did not return even
after about 10 minutes, PW2 Jayashri went to the said place. Prior
to that, she gave shouts and called Asha, however, at that time, as
it was raining and the atmosphere was windy, Jayashri felt that
Asha might not have heard her shouts. So, when Jayashri went to
the said place, she saw that the accused Dashrath was assaulting
Asha with a scythe and was giving repeated blows of scythe on
Asha. She saw that because of such blows of scythe, Asha fell
down on the ground. Thereupon, the accused saw Jayashri. So,
Jayashri was afraid that she would also be assaulted and,
therefore, she ran away from that place and came to the
apeal.282.2001 (J).doc
residence. At residence, she disclosed about the incident to
Madhukar and his wife. Thereupon, Madhukar, his wife and their
son alongwith Jayashri went back to the said place. They all found
that Asha was lying on the ground with severe injuries on her
person and she was dead. Thereafter, the Police Patil of the
village went to the Rajapur police station. The police persons went
to Runthetali about 9pm on the said day. PW5 PSI Bagave also
went to the village about 11pm. Thereupon, he recorded the
complaint of Madhukar. The said complaint was sent to Rajapur
Police Station for registration of crime, which was registered at
C.R. No.76 of 1994 with the Rajapur Police Station against the
accused.
Investigation commenced. Accused was arrested from his
home. Chargesheet was submitted. Thereafter, charge was
framed for the offence under section 302 of the Indian Penal Code.
The defence of the accused was of total denial and hence, the trial
proceeded accordingly. After completion of trial, the learned
Additional Sessions Judge, Ratnagiri acquitted the accused.
Hence, this Appeal by the State against the said acquittal.
apeal.282.2001 (J).doc
3. Learned APP appearing for the Appellant - State submitted
that the trial Court has failed to consider the evidence adduced by
the prosecution in proper perspective and erred in acquitting the
respondent - accused. He submitted that the trial Court has erred
in coming to the conclusion that the deposition of PW3 panch
witness for arrest of the accused was contrary to the panchanama
recorded. He submitted that the trial Judge has erred in holding
that the discovery at the instance of the respondent - accused
has not been properly proved under section 27 of the Indian
Evidence Act. He also submitted that the trial Judge erred in
coming to the conclusion that there was delay on the part of the
complainant to lodge the complaint. He further submitted that the
learned trial Judge has erred in not believing the evidence of PW2
Jayashri on the ground of absence of considerable blood stains on
the shirt of the accused seized by the Investigating Officer. He
has, therefore, prayed that the impugned judgement and order
dated 11th January, 2001 be reversed and the accused be dealt
with in accordance with law.
4. On the other hand, learned Counsel appearing for the
Respondent - accused has relied on the contents of and the
apeal.282.2001 (J).doc
reasoning given in the impugned judgement and order passed by
the trial Court and submitted that no interference be called for and
the Appeal be dismissed.
5. We have considered the submissions of the learned APP
appearing for the appellant - State and Mr.Dubey, learned Counsel
appearing for the respondent - accused. With their able
assistance, perused the evidence on record and the findings
recorded by the trial Court. In order to prove the prosecution case,
the prosecution had examined as many as six witnesses. The
complainant Madhukar Ghanekar as PW1; Jayashri Sahadeo
Ghanekar as PW2; panch witnesses Ganapat Anant Ware as
PW3; panch witness Anant Ramchandra Bandabe as PW4; PSI
Ragho Ramchandra Bagave as PW5; and Dr.Dhnayneshwar Arjun
Aiwale who conducted postmortem on the dead body of Asha, as
PW6.
6. In order to find out whether the death of Asha was homicidal,
accidental or suicidal, the prosecution examined Dr.Dhyaneshwar
Aiwale, who, at the relevant time, was the Medical Officer at the
Primary Health Center, Dhartale. He deposed that on 14 th July,
1994, the dead body of Asha was received by him for postmortem.
apeal.282.2001 (J).doc
On the same day, the dead body was taken to Rajapur for
postmortem at Rajapur Municipal hospital as there were no
postmortem facilities available at Dhartale. Accordingly, on that
day in between 3pm to 4pm, the postmortem was performed by
him. He had deposed about the injuries observed by him which
were mentioned in his evidence. He noticed, in all, 10 injuries and
he had opined that all the 10 injuries suffered by Asha were
caused with sharp and hard object.
In cross-examination of the said witness, there was nothing
for the accused to put forth for disputing the injuries caused to
Asha. So also, nothing was put to the said witness by the defence
council for disputing the cause of death and other such details.
Therefore, it is concluded by the trial Court that Asha died a
homicidal death.
7. PW1 Madhukar Ghanekar, the complainant, had deposed
that due to a quarrel in the past between his daughter Asha with
one Pushpa Krishna Waghvankar, sister of the Respondent
accused Dashrath Waghvankar, the family members were on
cross terms with the accused, although the same was settled by
the villagers. At the relevant time of quarrel, the accused had said
apeal.282.2001 (J).doc
that he will commit murder of at least one person from the family of
Ghanekar. On 13.7.1994, Madhukar's daughter Asha and niece
Jayashri had gone to nearby fields for grazing their cattle at which
place accused had also gone to graze his cattle. On that day,
Madhukar was at his residence. At about 1pm, Jayashri came
running to his residence in a frightened mood and she told
Madhukar that Dashrath was assaulting Asha with scythe at
Patkaltale. So, Madhukar alongwith his wife, son Ashok went to
the said place where they saw that Asha was lying on the ground.
There were injuries on her neck and Asha was in a pool of blood
and in fact dead. After hearing their cries, villagers gathered there.
He deposed that on the said date it was raining and somebody
from the village had informed the police and thereupon at about
11pm, the police came to his residence, at which time, his
complaint was recorded at exh. 40. In the cross-examination, he
stated that it is incorrect to say that there was quarrel with
Vaghvankar by him with regard to paying subscription to the
committee. He also stated that he did not inform the police about
the past incident involving Sitaram Waghvankar, cousin brother of
the accused, as he was not enquired by the police about it and
there was no occasion for him to inform it to the police.
apeal.282.2001 (J).doc
8. The real question which is to be determined in the present
Appeal is who was the author of the injuries caused to Asha
resulting in her death. The prosecution claims that the incident
was witnessed by Jayashri Ghanekar, who was examined as PW2.
She stated that in 1993, she and Asha had gone to Hanuman
temple for cleaning. At the temple, there was quarrel between
Asha and Pushpa Waghvankar. Accused Dashrat also
participated in the said quarrel and gave abuses. He also gave
threat of committing murder of at least one person from Ghanekar
family. However, the quarrel was settled by the villagers.
On the day of the incident i.e., on 13 th July, 1994, at about
8.30am, she and Asha went to Patkalwatali for grazing their cattle.
The accused Dashrath was also present at the said place for
grazing his cattle. It was raining and the atmosphere was windy.
At about 12.30pm, Asha went to look for her bull at the place
where the accused was grazing his cattle. Thereafter, for about 10
minutes, Asha did not return and, therefore, she (PW2) gave
shouts for Asha, however, she suspected that the shouts went
unheard because of rain and wind. Therefore, she went to the
place where Asha had gone. There, she saw that scuffle was
apeal.282.2001 (J).doc
going on between Asha and the accused. She saw that the
accused was assaulting Asha with a scythe due to which Asha fell
on the ground. Thereafter, the accused noticed her there (PW2
Jayashri) and she got afraid that the accused would assault her
also and, therefore, she ran away to her residence. At the
residence, she disclosed about the incident to the father of Asha
and his wife. Then they all went to the place where Asha was
being assaulted. At that time, Asha was found dead. She has
deposed that the villagers also followed them to that place.
9. Thus, it is evident from a careful perusal of her evidence
that, the alleged incident had taken place at about 12.30pm at
Patkalwatali. She returned home immediately and told the said
incident to her uncle and his wife. They proceeded towards the
spot followed by the villagers. During her cross-examination, a
suggestion was put to her that there was dispute between the
family of Dashrath Waghwankar and the father of Asha for
subscription of committee and to resolve that dispute, a meeting
was called. However, the said suggestion was denied by PW2.
During her cross-examination, she admitted that on 13 th July, 1994,
the police came at about 7pm for enquiry about the incident. The
apeal.282.2001 (J).doc
enquiry was made by the police with her about the incident. It was
stated that her statement was recorded by the police on 13 th July,
1994 at about 11pm. She further stated that her statement was
also recorded at Rajapur. She further stated in her cross-
examination that within 5 minutes after seeing the incident, she
started running to the residence. She left the place and at that
time the accused was continuing the act of giving blows on the
person of the deceased Asha. Within seconds, after reaching the
house, her uncle and the wife of her left the house and proceeded
towards the spot of incident. It is stated that within 10 minutes,
they went to the spot of the incident followed by the villagers.
When they went to the spot, the accused was not present at the
said place. She admits that 2 - 3 villagers had accompanied them.
However, she had no talk with those persons about the incident.
The news was spread in the entire Wadi. Thereafter, the villagers
were making enquiry with her about the incident.
She further deposed that on 14 th July, 1994, at about 11am,
PW5 PSI Ragho Ramchandra Bagave came to her residence and
at that time, her statement was recorded by PW5. She stated that
at that time, she did not know that one is required to file a
apeal.282.2001 (J).doc
complaint about such incident. She deposed that the incident had
taken place at about 12.30pm on 13th July, 1994.
10. Upon a careful perusal of the evidence of PW2, it is clear
that within 10 minutes of seeing the accused assaulting Asha, she
reached her residence and her uncle and his wife and the other
villagers went to the spot. However, none of the witnesses saw
the accused either assaulting Asha or running away from the spot
or nearby the spot of the incident. It is also strange to note that
PW2 did not tell anything to the villagers about the said incident.
She claims that her statement was recorded on 13 th July, 1994 at
11 pm by the police. The said statement has not been relied upon
by the prosecution or suppressed by the prosecution and her
statement which was recorded on 14th July at 11am was only
brought on record before the trial Court. Though she stated that
the police came at 7pm and she narrated the incident to the police,
there was no such evidence brought on record by the prosecution
before the trial Court. It appears that the Police Patil, who
accompanied PW2 and her uncle to the spot, went to the police
station at about 6.45pm, and informed about death of Asha, and
on the basis of said information, the police present in the police
apeal.282.2001 (J).doc
station entered the information in the police station diary. However,
he did not tell as to who were the assailants. It is stated that to
travel between the said village and the police station, it takes
about 1 hour. However, as per the claim by PW2, the police
visited their village at about 7pm. There was no reason for the
said police personnel not to record the complaint or at least orally
inform the police station in charge officer about the incident.
However, there is no evidence on record to suggest that at about
7pm, Jayashri informed the said police about the incident and
those police personnel, who were present in the village, as claimed
by PW2, had either recorded the statement of the complainant or
the statement of PW2. Therefore, in absence of any other
evidence on record and with the only statement of PW2 dated 14 th
July, 1994 at 11am on record, the trial Court has drawn a
reasonable inference that if Jayashri was the star witness of the
prosecution case, who claimed that she saw the incident, her
statement should have been recorded by the police with
promptitude. The delay in recording the statement of PW2
belatedly by mo re than 22 hours from the happening of the
alleged incident would cast doubt about the claim of the
prosecution that PW2 had actually witnessed the incident.
apeal.282.2001 (J).doc
11. It appears that the concerned police officer visited the village
at 11pm and thereafter, the First Information Report was
registered. The narration of PW1 ie., the complainant in his
deposition was certainly relying upon the information given by
PW2 Jayashri. It is also strange to note that even the complainant
did not tell name of assailant to the villagers and the Police Patil.
In the aforesaid background, the trial Court recorded the finding
that there was delay in lodging the First Information Report so also
about the conduct of the prosecution witnesses not telling the
villagers name of the assailant.
12. The prosecution claimed that there was recovery of clothes
from the house of the accused between 2am to 3am on 14 th July,
1994 as stated by the Investigating Officer PSI Bagve (PW5).
However, PW4 Anant Ramchandra Bandabe, who was panch
witness to the said seizure panchanama, stated that the said
recovery of clothes was in between 7pm to 8pm on 13 th July, 1994.
The trial Court keeping in view the evidence of panch witness and
the Investigating Officer, recorded a finding that there is a
complete mismatch in the timing of such recovery and seizure and,
therefore, the said alleged recovery of clothes cannot be relied
apeal.282.2001 (J).doc
upon and accepted. The trial Court has also seen the C.A. report.
It has also observed that neither the blood group of the deceased
nor the accused was determined by the prosecution and in
absence of such exercise, merely finding alleged blood stains on
the clothes of the accused which were allegedly recovered from
his house, is of no use. The learned trial Judge has also
commented on the procedure followed at the time of seizure of
clothes and articles and also the manner in which the said
recovered articles were sealed and seized and the delay caused in
entire process.
13. The prosecution claimed that the weapon i.e., scythe and
the clothes were recovered pursuant to the memorandum
statement of the accused when he was under arrest. The panch
witness PW4 Anant deposed that the accused mentioned the
place in the house where the scythe was kept. The trial Court
upon perusal of the evidence on record noticed that the said
scythe and akadi were not hidden and were not in a concealed
position but the same were kept at an open place. The said panch
witness PW4 also deposed that at the relevant time, the accused
was handcuffed. It is well established that when the accused is
apeal.282.2001 (J).doc
handcuffed and is asked to give the memorandum statement and
pursuant to such statement, certain discovery is made, it is of no
use, since by various pronouncements by this Court and the
honourable Supreme Court, it is held that if the accused is
handcuffed and at his instance, his memorandum statement is
recorded and pursuant to informaton given by him, a recovery is
made, the same cannot be believed being with a shadow of doubt
in making such voluntary statement.
14. Upon perusal of the evidence of the Investigating Officer PSI
Bagave (PW6), he failed to offer explanation before the trial Court
about serious lacunae in the investigation.
15. Upon appreciating the entire evidence on record, we are of
the view that the evidence of PW2 Jayashree cannot be believed
in absence of corroboration to the said evidence. The alleged
recovery of the clothes and seizure of weapon is disbelieved by
the trial Court for cogent reasons with which we are in full
agreement in the light of the discussion in the foregoing
paragraphs. On the whole, the prosecution case suffers from
inadequacies and also from a clear, cogent and clinching evidence
to reverse the order of acquittal by the trial Court. The findings
apeal.282.2001 (J).doc
recorded by the trial Court appears to be in consonance with the
evidence on record. We have minutely examined the findings
recorded by the trial Court. In the light of the evidence on record,
however, we did not find even a single finding perverse or contrary
to the evidence on record. For the moment, even if it is assumed
that on the strength of the evidence available on record that
another view is possible, is no ground to cause interference in the
order of acquittal if plausible view is taken by the trial Court in view
of the settled position in law by a catena of decisions of the High
Court and the honourable Supreme Court. The order of acquittal
passed by the trial Court is of 11 th January, 2001. We are hearing
this Appeal in the year 2021 and in absence of clear, cogent and
convincing evidence on record, we are unable to persuade
ourselves to accept the prosecution case and reverse the finding
of acquittal.
16. In that view of the matter, the appeal filed by the State shall
fail and accordingly, the same stands dismissed.
(SURENDRA P. TAVADE, J.) (S.S. SHINDE, J.)
