Bombay High Court
Shankar Sayaji Handore And Ors vs The State Of Maharashtra on 26 October, 2021
Bench: S.S. Jadhav, P. K. Chavan
2-APEAL-894-2004.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.894 OF 2004
1. Shankar Sayaji Handore ]
Age: 48 years, ]
2. Digambar Sayaji Handore ]
Age: 58 years, ]
3. Chandu alias Chandrakant ]
Sayaji Handore ]
Age 38 years, ]
All three residing at Handore ]
Mala, Vihitgaon, Taluka & ]
District Nashik and presently ]
lodged at Nashik Road Central ]
Jail to undergo and serve their ]
Sentence. ] Appellants
(Original Accused No.1 to 3)
V/s.
State of Maharashtra ]
(through Senior Police Inspector ]
Nashik Road Police Station in ]
FIR bearing CR No.53/2003 in ]
Nashik Session Case No.88 of 2003)] Respondent
SHAILAJA Digitally signed by SHAILAJA
SHRIKANT HALKUDE
SHRIKANT
HALKUDE
Date: 2021.10.26 16:59:45
+0530
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.....
Mr. Aniket Ujjwal Nikam a/w Mr. Piyush Toshnival, Mr. Vivek N.
Arote, Mr. Amit Icham, Mr. Aashish Satpute, for Appellants.
Ms. Geeta Mulekar, A.P.P, for Respondent-State.
.....
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 22nd SEPTEMBER, 2021.
PRONOUNCED ON: 26th OCTOBER, 2021.
JUDGMENT: [Per Prithviraj K. Chavan, Judge]:
1. By this appeal, the appellants have challenged the judgment
and order dated 7th July, 2004 of their conviction for allegedly
committing murder of one Hiraman More around midnight of 19 th
February, 2003.
2. Facts germane for disposal of the appeal can be summarized
as follows.
3. Hiraman More (deceased) was a poor fisherman residing
with his family at Village Vihitgaon, Taluka, District Nashik. In the
midnight of 19th February, 2003, he went for fishing. He did not
return till the next morning. However, around 8.00 am., accused
No.2-Digambar Handore came to Hiramna's house and asked his
wife to accompany him to his grape orchard.
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4. No sooner did she reach in front of the house of Accused
No.2-Digambar Handore, she noticed her husband in an injured
condition with his hands and legs tied to a scrap wood of the body
of a truck. A rope was also tied around his neck. He was bleeding
but was alive. It is alleged that Accused No.1-Shankar Handore,
Accused No.2-Digamber Handore and Accused No.3-Chandu
Handore along with their workers and some lady members of the
family of accused No.2 were present surrounding a brick kiln,
nearby.
5. Accused No.1-Shankar Handore in the presence of Accused
No.2-Digambar Handore and Accused No.3-Chandrakant Handore
as well as the workers and lady members, informed Hirabai that
he had assaulted her husband presuming him to be a thief.
6. Around 9.00 a.m on the same day, Hirabai returned to the
village to hire rickshaw in order to shift her husband to home.
Accordingly, she brought a rickshaw. She informed the rickshaw
Driver that her husband was lying in the grape orchard to whom
she wanted to bring back home. With the help of some persons,
Hirabai lifted her husband and brought him home. She offered
water to her husband. A few neighbors advised Hirabai to take her
husband to the Hospital for treatment. They also requested
Rickshaw Driver to take P.W.1-Hirabai and her injured husband for
treatment to Bytco Hospital. Hirabai had admitted her husband in
Bytco Hospital on 20th February, 2003 at 10.00 am. He was
examined and treated by the Doctors.
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7. On the same day, around 11.30 a.m, son of the deceased
informed the Police Inspector of Nashik Road Police Station who
was on duty about an assault upon his father and his admission in
Bytco Hospital. The Police Inspector came to the Hospital around
11.45 a.m to record statement of the deceased. However, he was
informed by the Doctors that Hiraman was not in a position to
make any statement.
8. Around 2.40 p.m, a Nurse from the hospital informed the
Police Inspector that Hiraman had died. P.W.1-Hirabai thereafter
lodged a report on the same day at 2.30 p.m with Nashik Road
Police Station against the aforesaid accused which came to be
registered as C.R.No.53 of 2003 under sections 302, 201 r/w 34 of
Indian Penal Code (for short 'I.P.C').
9. Some trustees of Madari Baba Dargah had also filed a
criminal case with Nashik Road Police Station against two
unknown persons for allegedly stealing a donation box containing
gift money, which, according to them, was lying near the body of
the deceased.
10. As usual, accused were arrested. The Investigating Officer
visited the spot of incident. Statement of the witnesses came to be
recorded. Panchanamas were drawn. Corpse of the Hiraman was
sent for autopsy. Undisputedly, deceased died a homicidal death.
11. After investigation, a charge-sheet came to be filed in the
Court of Judicial Magistrate First Class which ultimately
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committed the case to the Court of Session bearing Case No.88 of
2003.
12. A charge was framed in terms of Exhibit 8 under section
302, 201 r/w Section 34 of I.P.C against all the accused. They
pleaded not guilty and claimed to be tried. Their defence was total
denial of the offence alleged and false implication.
13. In order to substantiate it's case, the prosecution examined
as many as 12 witnesses.
14. After recording the evidence of prosecution witnesses and
hearing the respective sides, the learned Additional Sessions
Judge, Nashik by the impugned judgment convicted and sentenced
all the accused of offences under section 302 r/w section 34 I.PC
to undergo rigorous imprisonment for life and to pay a fine of
Rs.500/-, in default of payment of fine, rigorous imprisonment for
three months.
15. We heard Mr. Aniket Nikam, learned Counsel for the
appellants and Ms. Mulekar, learned A.P.P, for respondent-State at
length.
16. To substantiate the guilt of the accused, prosecution had
examined 12 witnesses. P.W.3-Madhukar Shinde, P.W.6- Sanjay
Sathe, P.W.9-Jagan and P.W.11- Vinayak Rao had resiled from their
statement, in the sense, they turned hostile. Their evidence is
hardly of any use to the prosecution.
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17. Material witnesses are P.W.1- Hirabai More, P.W.5-Sanjay
Vadnere and P.W.12-Kashinath Bharte coupled with testimony of
an expert namely P.W.4-Dr. Yuvraj Pawar.
18. Admittedly, deceased Hiraman died a homicidal death as
autopsy reveals that he had as many as thirteen injuries. Even
another deceased Sukhdeo Pawar had succumbed to the injuries
noticed on his corpse during autopsy.
19. P.W.4-Dr. Yuvraj Pawar testified that he conducted autopsy
on the corpse of the deceased from 3.30 pm to 4.30 p.m. on 20 th
February, 2003. P.W.4-Dr. Yuvraj Pawar opined that the probable
cause of death of deceased Hiraman was haemorrhagic shock due
to multiple injuries. The injuries noticed by this witness can be
described as follows;
"1. C.L.W. on left parietal region vertical in direction
admeasuring 2 cm x 1 cm by bone deep with a clotted blood
surrounding hair is cut;
2. Linear abrasion on left side of neck in posterior
triangle 7 x ½ c.m., reddish in colour,
3. Abrasion on left mastroid 2 c.m x 1 c.m;
4. Two contusions on the left arm on the lateral aspect 6
cm x 8 cm x 10 cm reddish bluish in colour;
5. Two abrasions over right wrist extensor surface 2 cm x
1 cm and 1 cm x 1 cm;
6. Closed fracture of right radio-ulna in lower 1/3rd;
7. Abrasion over right elbow 2 cm x 2 cm;
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8. Contusion over right thigh in middle 1/3 rd on
anterior aspect 5 cm x 4 cm;
9. Two abrasions over right knee 1 cm x 1 cm and ½ cm;
10. Linear abrasion over right ankle anterior aspect 3 cm x
½ cm;
11. Three small abrasions over right foot on extensor
surface 1 cm x ½ cm, 1 cm x ½ cm and 1 cm x 1 cm;
12. Abrasion on left infra-paterlar region 1.5 cm x 1 cm;
13. Contusion over left buttock 10 cm x 8 cm
Age of the injuries was within 24 hours.
20. P.W.4-Dr. Yuvraj Pawar further testified that main injuries
were fracture of proxymal phalynx of left ring finger. Fracture of
shaft of left finger in upper 1/3 rd with fracture neck femur. All
injuries were ante mortem and were caused within 24 hours. After
opening of the skull, he noticed diffused haematoma under the
scalp on left parietal region measuring 5 cm x 4 cm. Meninges
were pale and brain matter was normal. Autopsy report is proved
at Exhibit 32.
21. Similarly, he conducted postmortem on the corpse of
deceased Sukhdeo Valu Pawar on the same day between 4.50 pm
and 5.55 p.m and noticed following wounds;
1)Lacerated wound in right frontal region. Vertical just
above the right eyebrow measuring 3 c.m x 1 1/1 cm by
bone deep with clotted blood;
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2)Three abrasions seen over right side of back infra-scapular
region 3 cm x 3 cm, 2 cm x ½ cm and 2 cm x ½ cm;
Those injuries were also ante-mortem and were caused with hard
and blunt object like the articles seized by the Investigating Officer
which were shown to him.
22. During cross-examination by the defence, suggestions were
given that injuries on the person of the deceased Hiraman could
have been caused due to fall on pointed and sharp stones which
have been clearly denied. According to this witness, if there are
multiple falls on the rock while running, such injuries might cause
but they could be in the form of abrasions and contusions.
Contused lacerated wounds are also possible by fall on projected
stones. However, witness could not notice weal marks on the dead
bodies. He also admits that comminuted and compound fractures
are possible in the process of running and hit against a hard object
with a sufficient force. As can be seen, there is no effective cross of
P.W.4-Dr. Yuvraj Pawar and, therefore, we have no second thought
that death of deceased Hiraman was homicidal.
23. This takes us through next important aspect as to whether
the prosecution has adduced cogent and believable evidence to
indicate that it were the accused who were responsible for causing
homicidal death of deceased Hiraman and Sukhdeo? In other
words, whether there is sufficient evidence to link the accused to
the death of deceased Hiraman and Sukhdeo?
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24. In that regard, the important evidence would be that of
P.W.1-Hirabai widow of Hiraman. There is no eye witness to the
incident of assault. The brick kiln owners and workers i.e P.W.3-
Madhukar Shinde, P.W.9- Jagan, and P.W.11- Vinayak Rao chose not
to support the prosecution case. They have even gone to the extent
in denying their presence on the spot. However, evidence of P.W.1-
Hirabai reveals that her husband had gone for fishing during night
at around 3.00 a.m with his relatives. He did not return till 8.00 in
the next morning. However, accused No.2-Digambar Handore
came to her house and asked her to accompany him to his grape
orchard. He first took her from the grass in the field and then took
a round of the grape orchard and thereafter took her in front of his
house.
25. P.W.1-Hirabai saw her husband whose both hands and legs
were tied to a wooden plank of the body of a truck i.e scrap
material of a truck. He had injuries. Those injuries were bleeding.
Accused No.1 to 3 along with a few lady members of their family
were present. According to P.W.1-Hirabai, Accused No.2-Digambar
Handore told her that they had assaulted her husband presuming
him to be a thief and that she should take him to her house. She
further testified that Accused No.2-Digambar Handore had also
shown one more person who was tied in the gunny bag and kept
at some distance in front of his house. P.W.1-Hirabai could not see
the person tied inside the gunny bag. According to her, accused
had said that they would do anything with the man in the gunny
bag but she should take her husband to her house.
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26. Accordingly, P.W.1-Hirabai returned home requesting P.W.2-
Dadasaheb Khatikumar-rickshawala who was from their area to
take her home. Hiraman was brought to home from the field. He
was unconscious. He was unable to speak. At the request of
neighbours, P.W.1-Hirabai took her husband to the hospital
immediately in the same rickshaw at about 10.30 a.m. Hiraman
was taken to Bytco Hospital at Nashik Road where he was declared
dead after examination by the Doctor. A report came to be lodged
at the Police Station by her son immediately after Hiraman was
admitted in the hospital. Her evidence further reveals that when
she had gone to the field of the accused for the second time, she
found another person who was tied in the gunny bag was removed
from the spot and later his dead body was found near Dargah.
Police had brought dead body of the second person to the hospital.
He was Sukhdeo Pawar. However, P.W.1-Hirabai knew nothing
about the said Sukhdeo Pawar.
27. The learned Additional Sessions Judge has based the
conviction of the accused mainly on the following two features;
firstly, evidence of P.W.1-Hirabai and extra judicial confession of
accused No.2 to her, and, secondly spot panchanama.
28. It would be interesting to scan the evidence of P.W.2-
Dadasaheb Khatikumar- the Rickshaw Driver who took deceased
Hiraman to the hospital. The sum and substance of his evidence is
that he accompanied P.W.1-Hirabai, at her request, to bring injured
Hiraman from the field of accused No.1 to 3. This witness had
brought Hiraman to his house. He knew the accused. According to
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this witness, Hiraman was found lying beneath a tree. With the
help of some persons, he was placed in the Rickshaw.
29. Interestingly, P.W.2-Dadasaheb Khatikumar nowhere testified
that P.W.1-Hirabai had disclosed him about the extra judicial
confession made by accused No.2, who had been to her house and
informed her that presuming Hiraman as a thief, they had
assaulted him and, therefore, she should accompany him and take
Hiraman to home.
30. The natural conduct of P.W.1-Hirabai could have been, at
least, immediately share the said extra judicial confession with
P.W.2-Dadasaheb which she did not. She even could have disclosed
this fact to her son or neighbours who gathered after noticing
injured Hiraman. The silence of P.W.1-Hirabai is shrouded with
suspicion. It is unfathomable as to why P.W.1- Hirabai did not
share what had been confessed by accused No.2-Digamber
Handore, at least to her son. It is not the case that she was
threatened or pressurized for not disclosing the said extra judicial
confession to anyone. There is no whisper in the evidence of P.W2-
Dadasaheb also that P.W.1-Hiirabai had given him some hint.
Assuming for a moment that any such extra judicial confession was
made by accused No.2-Digamber Handore, the same had been
retracted, rather it is the contention of accused No.2-Digamber
Handore in his statement under section 313 of the Cr. P.C. that no
such extra judicial confession was made by him to P.W1- Hirabai.
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31. The spot of incident has been proved by P.W.5-Sanjay
Wadnere. The spot was shown by P.W.1-Hirabai in the presence of
this witness. It was the place where she noticed Hiraman tied to a
scrapwood of body of the truck and another person tied in a gunny
bag. The panchanama also reveals an iron rod and pair of shoes
on the spot along with wooden sticks. Those articles were seized
and sealed by the Investigating Officer. Those articles also appear
to have been seized from considerable distance in front of the
house of the accused which is an open space after the grape
orchard. It is apparent from the spot panchanama that the house
of the accused was at a distance of around 10 to 15 feet from the
spot.
32. It can be seen that the spot was not far away from the road.
It is the case of the prosecution that both deceased Hiraman and
Sukhdeo had jointly gone to commit theft in the grape orchard and
that they were caught by the accused and then assaulted them
brutally. According to the prosecution, motive behind the assault
was theft of grapes by the deceased. As a matter of fact, there is no
shred of evidence indicating that Hiraman and Sukhdeo had stolen
grapes from the orchard of the accused. Rather, the evidence is
quite short in establishing the fact that, in fact, there were grapes.
33. Be that as it may. If all the accused had assaulted the
deceased along with brick kiln owners, it is surprising as to why
there is no evidence to indicate that deceased Hiraman and
deceased Sukhdeo were joint in their venture to commit theft of
grapes in the light of the fact that deceased Sukhdeo was found
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lying near Dargah and donation box of Dargah was found lying
near him which necessarily meant that they were not joint in their
venture. Perhaps Sukhdeo might have gone to steal the donation
box. However, it is not the case of the prosecution. The learned
Additional Sessions Judge had already found that there is no
evidence connecting the accused with the death of deceased
Sukhdeo and, therefore, it is needless to go into that aspect.
Nevertheless, if both were assaulted simultaneously then the
prosecution should have produced on record convincing and
cogent evidence to show that the accused were the authors of the
injuries inflicted upon the person of deceased Hiraman resulting
into his death.
34. Thus, there is no acceptable and convincing evidence in
regard to assault either on deceased Hiraman or on deceased
Sukhdeo. Evidence of P.W.1-Hirabai is quiet shaky, ambiguous and
weak.
35. There is no evidence brought forth on record by the
prosecution to indicate that even Sukhdeo had been to the grape
orchard of the accused for committing theft. Deceased Sukhdeo
was not even known to P.W.1-Hirabai. Her evidence reveals that
she had seen a person tied in the gunny bag. However, she had
no occasion to see as to in fact who was in the gunny bag, and,
therefore, the identity of Sukhdeo is also a mystery.
36. It is not the case of the prosecution that deceased Sukhdeo
was either related or was the friend of deceased Hiraman. No
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efforts have been made by the investigating agency to collect the
evidence to show that the body of Sukhdeo was removed by the
accused after 9.00 pm on the same day and was thrown at the
place where it was found. It is also surprising that no attempts
have been made to find out the relatives of deceased Sukhdeo nor
any of his relatives or friends have been examined by the
prosecution. There was nobody to identify the dead body of
Sukhdeo. However, it is alleged that it was subsequently identified
by his sister.
37. There is one more important aspect. Except P.W.1-Hirabai,
there is absolutely no evidence to corroborate her version that
accused No.2-Digamber Handore had been to her house, especially
during broad day light. Even if it is presumed for a moment that
accused No.2-Digamber Handore had been to house of P.W.1-
Hirabai, that in itself would not ipso facto prove the factum of
assault or in other words, that the accused were authors of the
injuries on the person of deceased Hiraman. Evidence is quite
scanty to establish complicity of the accused in the alleged crime.
38. This is significant in the light of the fact that as per the
panchanama, there is a road at a short distance from the spot
where Hiraman was found in an injured condition. There is one
more angle to this case as to why accused No.2-Digambar Handore
would go to Hirabai's house only to inform and to make an extra
judicial confession that he himself and other accused had assaulted
Hiraman whom they thought to be a thief by incurring a risk of
reporting the matter to the Police.
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39. Secondly, why they would keep Hiraman tied knowing well
that P.W.1-Hirabai would definitely suspect some foul play on their
part and spill the beans. If both deceased had been to steal grapes,
then why one would steal donation box of Dargah which has not
been clarified by the prosecution. This necessarily means that
there was no sharing of common intention between the deceased
Hiraman and Sukhdeo to commit theft of grapes.
40. Even if it is assumed for the sake of arguments that accused
No.2-Digamber Handore had been to the house of Hiraman where
he alleged to have made an extra judicial confession, why none of
the accused had been to the house of Sukhdeo? Extra judicial
confession is indeed a weak type of evidence. In this case, accused
No.2-Digambar Handore is said to have denied any such statement
made to P.W.1-Hirabai and, therefore, in the absence of any
corroboration to the same, it would be unsafe to accept and rely
upon the same.
41. If it is the case of the prosecution that the owner of the field
and the owners of the brick kilns had assaulted deceased Hiraman
then why they were not arraigned as accused along with these
accused and why no role had been attributed or any evidence is
produced as to the nature of assault alleged to have been made by
the brick kiln owners. The owners of the brick kilns had not
supported the prosecution case who are cited as witnesses.
42. There is a material contradiction in the evidence of P.W.1-
Hirabai that in the complaint she had stated that her husband was
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assaulted by the accused and the owners of the brick kilns.
However, when her attention was drawn to her complaint, she
denied to have so stated before the Police. Even in the report,
P.W.1-Hirabai did not narrate that Hiraman was tied to a wooden
plank. Hirabai did not inform the Doctor who had treated Hiraman
as to how he had sustained the injuries.
43. C.A. Report Exhibit 17 reveals that no blood was detected
on the following articles;
(a)Wooden Stick; - wrapped in paper labelled- A-1;
(b)Wooden sticks
(c)Iron rod;
(d)Bamboo stick wrapped in paper, labelled - A-2;
(e)Pair of shoes wrapped in paper labelled - A-3;
(f) Earth in a polythene bag wrapped in
paper labelled - A-4
(g)Kardora wrapped in paper labelled - C-4;
(h)Pair of shoes wrapped in paper labelled - C-5;
(i)Full pant wrapped in paper labelled - D-2;
(j)Manila wrapped in paper labelled - E-2;
(k)Full pant wrapped in paper labelled - E-2;
(l)Manila (torn) wrapped in paper labelled - E-1,
(m)Full pant wrapped in paper labelled - E-2.
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44. P.W.3- Madhukar Shinde is the owner of the brick kiln. He
turned hostile. The learned A.P.P, during the cross-examination
could not elicit anything from his mouth which would indicate
that he has deliberately given false evidence. His evidence is of no
use to the prosecution in connecting the accused as the authors of
the injuries inflicted upon deceased Hiraman.
45. There is no investigation with regard to recovery of any
valuables from the donation box alleged to have been stolen by
deceased Sukhdeo. It is apparent from the record that
subsequently C.R. No.54 of 2003 under section 379 came to be
registered. If both were caught raid handed committing the
offence of theft, then why there were two C.R. Nos. registered
namely, first C.R. No.53 of 2003 qua death of deceased Hiraman
and secondly qua death of deceased Sukhdeo? If deceased
Hiraman was known to the accused persons then why the report
was lodged against an unknown person in respect of theft of
grapes from the grape orchard.
46. So far as the evidence of Dog Squad is concerned, handler
of the dog had not given any clue.
47. The impugned judgment is full of surmises and conjectures,
in the sense, the learned Additional Sessions Judge has erred in
observing that P.W.1-Hirabai did not immediately disclose the fact
of alleged extra judicial confession either to the Police or to P.W.2-
Dadasaheb, perhaps because she had hopes that her husband
would not die. A grave error has been committed in placing
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implicit reliance only upon the evidence of P.W.1-Hirabai in respect
of the alleged extra judicial confession made by accused No.2-
Digambar Handore, that too, only of his assault and not for
committing the murder of deceased Hiraman.
48. Before parting with the judgment, we would like to educe
some anomalies and flawy investigation of this case. At the cost of
repetition, it is evident that there is no shred of evidence of
whatsoever nature indicating that Hiraman and Sukhdeo had
stolen grapes from the orchard of the accused. It would be far-
fetched to construe that both the deceased, in tandem, committed
theft of grapes from the orchard of the accused. It is significant in
the light of the fact that deceased Sukhdeo was found lying near
Dargah and donation box of Dargah was found lying near him,
which aspect confirms the fact that perhaps, Sukhdeo was not
hand in gloves with deceased Hiraman. There is no proper
investigation in that regard. The Investigating Officer had not
made any attempt to find out the whereabouts of deceased
Sukhdeo nor any attempt appears to have been made to trace his
relatives or friends, at least to identify his dead body. It appears
that subsequently, sister of deceased Sukhdeo identified the
deceased. Another glaring anomaly is not arraigning the brick kiln
owners or workers as accused though it is the prosecution case
that they too assaulted the deceased. The investigation is thus
quite casual and perfunctory.
49. Having considered the entire circumstances, evidence and
facts of the prosecution case, we are of the view that the learned
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Additional Sessions Judge had committed a grave error in holding
the accused guilty for having committed the murder of deceased
Hiraman. The evidence is quite inconsistent, shaky and does not
at all inspire confidence. Consequently, the impugned judgment
warrants interference in the appeal. We, therefore, proceed to pass
the following order;
:ORDER:
[a] The appeal is allowed;
[b] The impugned judgment and order in Sessions
Case No.88 of 2003 dated 7 th July, 2004 is quashed
and set aside;
[c] The appellant-accused are acquitted of the offence
punishable under section 302 r/w section 34 of
I.P.C.
[d] Their bail bonds stand cancelled.
[e] Muddemal property being worthless, be
destroyed;
[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.]
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