Bombay High Court
Shelkya Jhurkya Pawar vs The State Of Maharashtra on 26 October, 2021
Bench: S.S. Jadhav, P. K. Chavan
4.apeal63.2000.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 63 OF 2000
Shelkya Jhurkya Pawar.
Age: 27 yrs. Occ: Labourer.
R/o. Bhurli, Tal. Tasgaon,
Dist. Sangli. ... Appellant.
(Yerwada Central Prison)
v/s.
The State of Maharashtra
(At the instance of P.I. Pandharpur
Taluka Police Station) ... Respondent.
-------------------
Mr. Veerdhawal Deshmukh, Court Appointed advocate for
appellant.
Ms. S. V. Sonawane, APP for State.
---------------------
Digitally
CORAM : SMT. SADHANA S. JADHAV &
signed by
ARUNA S
PRITHVIRAJ K. CHAVAN, JJ.
ARUNA S TALWALKAR
TALWALKAR Date: RESERVED ON : SEPTEMBER 23, 2021.
2021.10.26
16:43:06
+0530
PRONOUNCED ON : OCTOBER 26, 2021.
JUDGMENT (PER SMT. SADHANA S. JADHAV, J)
1 The appellant herein is convicted for the offence
punishable under section 302 and 392 read with 34 of the
Indian Penal Code and sentenced to suffer imprisonment for life
and to pay a fine of Rs. 3,000/- I.d. to suffer one year rigorous
Talwalkar 1 of 14
4.apeal63.2000.doc
imprisonment vide Judgment and Order dated 25/11/1999 passed
by II Addl. Sessions Judge, Pandharpur in Sessions Case No. 138
of 1998. Hence, this Appeal.
2 Such of the facts necessary for the decision of this
appeal are as follows :
That on 29/7/1998 Ranjana Ankush Sidhwadkar lodged a
report at the police station alleging therein that she lives in a
joint family on the road between Mendhapur to Karkamb and the
brothers of his father-in-law is their neighbour. That on
28/7/1998 at about 10 to 10.15 p.m. her neighbour i.e. wife of
the brother of her father-in-law raised cries that there are
"thieves". They heard thunderous knock on their door
threatening them to open the door or else the callers would set
the house on fire. Upon hearing the threat, her father-in-law
opened the door. Two unknown persons entered into the house.
They had meagre clothes on their person i.e. banian and half
pant. The unknown person had snatched the ornaments which
were on the person of the complainant and her mother-in-law.
Talwalkar 2 of 14
4.apeal63.2000.doc
That the unknown persons had picked up an axe which was in
the house of the complainant and had assaulted her father-in-law
with the same. On the basis of her report, Crime No. 130 of
1998 was registered at Pandharpur Police Station for the offence
punishable under section 394, 302 read with section 34 of the
Indian Penal Code.
3 At the trial, the prosecution has examined as many as
4 witnesses to bring home the guilt of the accused.
4 P.W. 1 Ranjana Sidhwadkar is the complainant.
According to her, on hearing the cries of her cousin mother-in-
law, namely, Bhamabai to the effect that thieves had come, all
her family members had got scared and her father-in-law locked
the door from inside. They were constrained to open the door
since there was a threat from outside by the thieves that if the
door is not opened, the house would be set on fire. She gave
description of two persons who had entered her house. Third
person was standing outside. One of them was holding a torch.
Talwalkar 3 of 14
4.apeal63.2000.doc
Due to threats given by the thieves, they handed over their
ornaments to them. That the thieves had asked her father-in-law
to open big metal box(trunk). One of the two persons took the
axe which was kept on the rear side of the door and mounted
assault on her father-in-law with the same. The thieves then fled
from the spot. Her substantive evidence is in consonance with
the FIR which is marked at Exh. 10. On 30/7/1998, her father-
in-law expired in the hospital.
5 P.W. 1 has categorically stated that she had seen the
facial features of one of the accused in the light of a small
lantern in her house and therefore, she had identified him at the
police station. She identified the accused before Court. It is
admitted in the cross-examination that after about a week of the
incident, she was called to the police station by the police and
she was informed that the accused were arrested. She has also
admitted that the accused were identified by her at the police
station.
Talwalkar 4 of 14
4.apeal63.2000.doc
6 P.W. 2 Maruti Chougule resides at the distance of one
furlong from the farmhouse of Sidhwadkar. According to him, on
the date of the incident at about 10 p.m., there was stone-pelting
on the tin roof of his house. Three persons had been there.
They started beating him and his wife and they assaulted him
with an axe on his forehead and took away Rs. 200/- from his
pocket and also snatched ornaments from the person of his wife.
They were wearing banian and half pant. He had seen the faces
of the thieves in the light of a small lantern in his farm house.
Therefore, he would identify them at the police station. It is
elicited in the cross-examination that one of the thieves was
flashing battery on his face and therefore, he was unable to see
anything. The fact that he had seen the face of one of the
thieves in the light of the small lantern is an omission. He had
identified the accused at the police station after 10 to 12 days
of the incident.
7 P.W. 3 Ravindra Sadigale happens to be panch for the
memorandum of recovery at the instance of the accused, who had
Talwalkar 5 of 14
4.apeal63.2000.doc
informed the police that he would lead them to the place where
he had disposed of the ornaments. The memorandum is at Exh.
13. The accused had led them to a goldsmith shop at Jeure.
The goldsmith Mr. Mahamuni was present in the shop. Upon
enquiry, owner of the shop had informed that the said accused
had sold 15 gm of gold and subsequently, he had pledged two
ornaments with him. The goldsmith had produced the gold
ingots and two ornaments before the police. The articles were
seized under the panchanama at Exh. 14. The panch had
identified two articles. The distance between Pandharpur to
Jeur is about 60 kms. It is elicited in the cross-examination that
when the police alongwith the accused and panchas reached the
shop, it was closed and the constable was deputed to call the
shop keeper.
8 There is no doubt that Dagadu Sidhwadkar had
sustained injuries in the said incident and had succumbed to the
said injuries on 30/7/1998. Column No. 17 of post mortem notes
show that there were sutured wounds over left fronto parietal
Talwalkar 6 of 14
4.apeal63.2000.doc
region 6" in length Bur-hole done, on left frontal bone and on
left parietal bone. Column No. 19 shows that -
(i) Injuries under the scalp, ----
their nature:
(ii) Skull-Vault and base-describe # Lt. Frontal bone.
fractures, their sites,
dimensions, directions etc. # Lt. Parietal bone.
(iii) Brain-The appearance of its Heamatoma at Lt. Fronto
coverings, size, weight and parietal area. Brain matter
general condition of the destroyed over Lt. Parietal
organ itself and any region.
abnormality found in its
examination to be carefully
noted (Weight M. 3 gram F.
2.75 grams.)
The cause of death is "due to head injury c # Lt. Frontal bone,
# Lt. Parietal bone c heamatoma over Lt. Fronto parietal area."
9 P.W.4 Sanjay Tathe is the Investigating Officer of
Crime No. 130 of 1998. He has deposed before the Court the
steps taken by him in the course of investigation. P.W. 4 has
proved the omission in his evidence. It is admitted that P.W. 1
and P.W. 2 had not stated before him that they had seen the
faces of the accused in the light of small lantern in their house.
Talwalkar 7 of 14
4.apeal63.2000.doc
10 As far as recovery of the golden articles is concerned,
there is variance in the evidence of P.W. 3 and P.W. 4.
According to P.W. 3, the police and the panchas had left for
Jeur at about 7 to 7.15 p.m. They required two hours for
reaching at Jeur and the panchanama and had started at about
9.30 p.m. According to P.W. 4, the memorandum was recorded
at about 5.45 a.m. They reach Jeur at about 8.30 a.m. and when
they reached the shop, it was open. Panchanama is written in
vernacular and we have verified the time of recording the
memorandum. It is shown as 5.45 a.m. to 5.50 a.m. and the
recovery of articles is shown between 5.50 a.m. to 9.40 a.m.
11 Learned Counsel for the appellant has vehemently
submitted that the ability of the witnesses to have seen the
accused in the small lantern light cannot be taken into
consideration for simple reason that they are in the form of
omissions, proved by the investigating officer. It is admitted by
P.W. 1 and P.W. 2 that they had identified the accused in the
Talwalkar 8 of 14
4.apeal63.2000.doc
police station. This aspect of the case needs to be taken into
consideration in view of the Judgment of this Court in the case of
Ramcharan Bhudiram Gupta v/s. State of Maharashtra 1, wherein it
is observed that -
"In order to make identification evidence beyond reproach,
it is high time that an end is put to the practice of holding
of identification at police station and identification parades
instead are held in jail. This practice would not only enable
the police to wash the stigma of showing suspects prior to
their identification; a stigma which more than often is
unfounded, but has manifold other advantages. Jails have a
large population these days. It would be easy there to find
persons similar to the suspects sought to be put for
identification. Such similar persons have to be mixed with
the suspects at the time of identification.
The identification in jail would not only actually be free
from any taint or suspicion but equally importantly it would
also appear to be so. It would instil a sense of confidence
both in the minds of the suspects sought to be put for
identification as well as the court. There are some other
infirmities too in the evidence of identification, which render
it unworthy of acceptance."
1 1996(1) Bom C.R. 190
Talwalkar 9 of 14
4.apeal63.2000.doc
12 Reliance can also be placed on the Judgment of the
Supreme Court in the case of Ravindra @ Ravi Bansi Gohar v/s.
State of Maharashtra & ors.2, wherein it is observed that -
"9. Another disturbing feature of the case is that the T.I.
parade was held inside the lock-up of the C.I.D Department
of the Bombay Police which was investigating into the case
at the material time. In Hasib v. State Of Bihar AIR 1972 4
SC 283, this Court observed that a vital factor for
determining the value of an identification parade is the
effectiveness of the precautions taken by those responsible
for holding them against the identifying witnesses having an
opportunity of seeing the persons to be identified by them
before they are paraded with other persons and also against
the identifying witnesses being provided by the investigating
authority with other unfair aids or assistance so as to
facilitate the identification of the accused concerned."
Although identification in the court is substantive piece of
evidence in the facts of the present case, it is seen that no
abundant caution was taken by the investigating agency to conceal
identity of the accused when brought for trial before the court.
Thirdly, the accused were not carrying any weapon. One of the
2 AIR 1998 SC 3031
Talwalkar 10 of 14
4.apeal63.2000.doc
accused had picked up the weapon from the house of the
complainant and had mounted single blow on the head of the
father-in-law of the complainant, to which he succumbed on the
following day.
13 Learned Counsel submits that there are inherent
discrepancies in the evidence of the witnesses as far as the time
of recording of memorandum and recovery panchanama at Exh.
13 and Exh. 14 is concerned. The evidence of pancha i.e. P.W. 3
is not in consonance with the evidence of P.W. 4 Investigating
officer and therefore, it appears that P.W. 3 was not present at
the time of panchanama or that he is a got up witness. Lastly, it
is submitted that the facts of the case would show that the father-
in-law of the complainant had sustained injuries in the course of
committing theft. That a charge under section 394 of the Indian
Penal Code ought to have been framed.
14 That the trial Court has not framed any charge under
section 394 of the Indian Penal Code. That the deceased was
Talwalkar 11 of 14
4.apeal63.2000.doc
about 65 years old. There appears to be a single injury on the
left fronto parietal region which is 6" in length and which has
caused fracture of the left frontal bone and left parietal bone. Be
that as it may, the incident is undisputed. The death of father-in-
law of the complainant in the course of incident is also
undisputed. However, criminal trial is not a quest for
ascertaining the truthfulness and genuineness of the incident, but
it is a quest for the offender who has committed the said offence.
The prosecution has to prove that the involvement and liability
of the offender and in the said case, the prosecution has to stand
on its own legs. What goes to the root of the matter is to
ascertain as to whether the complainant had sufficient opportunity
and time to observe the facial features of the thieves who had
entered her house. There was no availability of light and even
if the version of the complainant is accepted, it needs to be
appreciated that it was a dim lantern. It is also a matter of
record that the complainant had not informed the police that
she had seen the faces of one of those person in the light of small
lantern and the omissions are proved by the Investigating Officer.
Talwalkar 12 of 14
4.apeal63.2000.doc
15 On the basis of above discussion, it can be held that
the prosecution has not established beyond reasonable doubt that
it is the appellant who had caused death of Dagadu Sidhawadkar
while committing theft in the house of the complainant. We are
also of the opinion that the recovery under section 27 of the
Indian Evidence Act is not proved. In view of this, the
accused/appellant deserves to be acquitted of both the charges.
Hence the appeal deserves to be allowed.
16 While parting with the Judgment, this Court
appreciates the efforts taken by the learned Advocate Mr.
Veerdhawal Deshmukh appointed to espouse the cause of the
appellant. He is entitled to professional fees as per rules.
17 Hence, following order is passed :
ORDER
(i) The appeal is allowed.
(ii) The conviction and sentence imposed upon the
Talwalkar 13 of 14
4.apeal63.2000.doc
appellant vide Judgment and Order dated 25/11/1999 passed by
II Addl. Sessions Judge, Pandharpur in Sessions Case No. 138 of
1998 is hereby quashed and set aside.
(iii) The appellant is acquitted of all the charges levelled
against him. He be released forthwith if not required in any
other offence.
(iv) The fine be refunded, if paid.
(v) The Criminal Appeal is disposed of accordingly.
18 The Registry shall inform the Appellant about the
Judgment of acquittal.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
Talwalkar 14 of 14
