Shri Shivaji Shankar Zagade vs The State Of Maharashtra
2022 Latest Caselaw 1992 Bom

                                                                              721-2000-Apeal-Judg.doc


                             Uday S. Jagtap


                                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CRIMINAL APPELLATE JURISDICTION

                                               CRIMINAL APPEAL NO. 721 OF 2000

                             Shivaji Shankara Zagade                                  ]
                             Age about 25 years, Occ. Mason,                          ]
                             R/o. Zagade Vasti, Mhaswad.                              ]
                             Tal. Maan, Dist. Satara                                  ]..Appellant

                                    Vs.

                             State of Maharashtra                                     ].. Respondent

                                                            .....

Ms. Shradha Sawant, appointed advocate for the appellant Ms. M.M. Deshmukh, APP for respondent - State

CORAM : SMT. SADHANA S. JADHAV & PRITHVIRAJ K. CHAVAN, J.J.

RESERVED ON : 1st FEBRUARY, 2022 PRONOUNCED ON : 26th FEBRUARY, 2022

JUDGEMENT :- (Per Prithivraj K. Chavan, J.)

1. By this appeal, the appellant impugns judgment of conviction

rendered by 3rd Additional Sessions Judge, Satara on 30 th

September, 2000, by which he has been sentenced to suffer

imprisonment for life and fine of Rs.500/- in default to suffer R.I.

for three months, for having committed murder of his father -

Shankar ("deceased").

          Digitally signed
UDAY      by UDAY
          SHIVAJI
SHIVAJI   JAGTAP
          Date:
JAGTAP    2022.02.26
          11:57:18 +0530
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                                                721-2000-Apeal-Judg.doc

2. The prosecution's story goes like this. Laxmi S. Zagde, wife of

the deceased and mother of the appellant is the first informant.

The prosecution's case is that the appellant hails from Zagade

Mala, Mhaswad, Tal. Maan, Dist. Satara. At the relevant time, he

was serving in Mumbai. Back in the village, his father and

mother were staying. The appellant was working as Mason in

Mumbai. His other brother namely Tanaji was also out of station

for his livelihood. Gajanan was staying at Pandharpur, while

younger brother Vijay was staying at Mhaswad. Father of the

appellant was also working as Mason whenever work was

available. Father of the appellant, however, was addicted to

liquor.

3. The appellant had been to the village eight days prior to the

incident. He noticed the deceased continuously abusing his

mother under the influence of liquor which had become a

routine. On the fateful day of 2nd March, 1997 around 8.30 a.m.

the deceased had gone to Mhaswad. His mother (appellant's)

was busy in cooking. Around 11.00 a.m. the deceased returned

home under the influence of liquor and started abusing his wife

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on the ground that her behavior was improper and she should

vacate his house. His wife however, told the deceased that she

had four sons and she had no place to go at such an advanced

stage. She also told her husband that she would stay with him

only and he may do whatever he likes. The quarrel continued.

The deceased, therefore, pounced upon his wife and started

beating her. The incident continued till 4.00 p.m. By that time,

the appellant returned home. He waited in the courtyard and

heard the quarrel. He could not control himself. He intervened

and asked the deceased as to why he was quarreling with his

mother. The deceased asked the appellant his authority to

question him. The deceased asked the appellant to vacate his

house and pushed him away. The appellant too got up and

pushed the deceased. The deceased fell down. The appellant

then brought a stone and threw it on the head of the deceased

resulting into bleeding injury. The deceased started groaning.

Someone had gone to call the doctor. Dr. Prakash Deshmane

arrived at the scene and after examining the deceased, declared

him dead.

4. Mother of the appellant went to the police station and thereafter

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the Investigating Officer, PW-2 - P.S.I. Sanjay Tathe, who was on

patrolling duty rushed to the spot. An offence came to be

registered against the appellant on the same day bearing C.R.

No. 6 of 1997 under Section 302 of the Indian Penal Code.

5. The Investigating Officer had recorded statements of the

witnesses, drew spot and inquest panchanama and the dead body

of the deceased was sent for autopsy. The appellant was arrested

on 4th March, 1997. During interrogation, the appellant alleged

to have discovered the stone used in the commission of the

offence, which was concealed in the cottonwood, towards the

back side of his house. The muddemal property including the

blood stained clothes of the deceased and other articles were

seized for chemical analysis. After investigation, a charege-sheet

came to be filed against the appellant in the Court of Judicial

Magistrate First Class, Dahivadi, which was ultimately committed

to the Sessions Court, Satara as the offence under Section 302 of

the Indian Penal Code was exclusively triable by the Sessions

Court.

6. The appellant appeared before the learned Additional Sessions

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Judge. After hearing both the sides, a charge was framed under

Section 302 of the Indian Penal Code, which was explained to the

appellant. He abjured the guilt and claimed to be tried. His

defence was of total denial and false implication.

7. The learned Additional Sessions Judge after going through the

evidence on record and after hearing the prosecution and defence

witnesses found that the prosecution has proved the case beyond

all reasonable doubts and, therefore, convicted and sentenced the

appellant to suffer imprisonment for life inter alia fine of

Rs.500/-.

8. We heard the learned Counsel for the appellant and the learned

APP at length. With the assistance of learned Counsel for the

appellant we have scanned the evidence of the prosecution

witnesses.

9. At the outset, indisputably the deceased died a homicidal death,

which is evident from the autopsy report as well as the evidence

of PW-3 Dr. Jaiwant Galande. He conducted an autopsy on

3rd March, 1997 and noticed the following injuries :-

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"External Injuries :-

1. Site Ziagomatic bone 1"x 1/2" x 1/2" contused.

2. C.L.W. over left ear 2" x 1/4" x 1/4"

3. C.L.W. over pinna of left ear 1" x 1/2"

4. C.L.W. over posterior aspect of left ear 2" x 1" x 1/2"

5. C.L.W. over occipital area 2.1/2" x 1" x 1"

6. C.L.W. lower area of pinna of ear 1 cm.

7. Fracture of ziagomatic bone.

Internal Injuries :-

1. Fracture of temporal bone left.

2. Fracture of ziagomatic bone left

3. Fracture of left side of skull.

4. Haemotoma over right and left temporal region."

10. According to the expert, the death was due to cardio-respiratory

arrest due to head injury. He further opined that the injuries are

possible if a stone is hit on the head. He categorically denied

that the injuries described at Sr. Nos. 1, 2, 3, 4, 6 and 7 in

Column No.17 are not possible due to fall on such stone. His

evidence could not be rebutted during the cross by the defence.

Once it has been established that the deceased died a homicidal

death, the next important question would be whether the

prosecution has succeeded in establishing a nexus between the

homicidal death and the accused. In the sense, whether the

appellant was an author of the injuries sustained by the deceased.

11. The only eye-witness and the mother of the appellant PW-1

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Laxmi Zagade has turned hostile. The sum and substance of her

evidence is that the deceased (her husband) was addicted to

liquor. He always used to pick up quarrel with her and also used

to beat her whenever she refused to give money. It is testified

by PW-1 Laxmi Zagade that on the day of incident, the deceased

returned home around 1.30 p.m. under the influence of liquor

and asked this witness to serve food. She could not serve the

food as it was not ready. She asked him that she would cook the

food and then serve him. However, he caught hold of her hand

and drove her out of the house by abusing her. In that dispute,

he himself fell down on the same stone resulting into injuries.

The witness, therefore, started screaming and crying. Thereafter,

the appellant came over there. He called a Doctor. The Doctor

after examining her husband, declared him dead. He was then

removed to the hospital.

12. During her cross-examination by the learned APP, it transpired

that father-in-law of PW-1 Laxmi Zagade namely, Tatoba Zagade

and sister-in-law Mangal Kadam were at home at the relevant

time. The prosecution, however, has not examined these two

important material witnesses, who could have been the best

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persons to depose about the alleged incident. She admits that

deceased always insisted that this witness should not co-habit

with him. However, this witness used to say that at that stage of

life, she cannot go anywhere by leaving her family alone. The

witness had denied a suggestion that when the appellant came

over there, the deceased abused him also in filthy language and

asked him to leave the house. She has further denied that the

appellant picked up a stone from a dilapidated wall and hit it on

the head of her husband. She denied that the deceased started

giving jerks to his limb and, therefore, she raised hue and cry.

She however, admits that Dr. Prakash Deshmane was called, who

after examining her husband declared him dead. She admits that

the dead body of the deceased was lifted and kept on the bed and

thereafter it was taken to the hospital. However, she denied

visiting the police station and reporting against the appellant.

13. We wonder as to why the prosecution did not confront PW-1

Laxmi Zagade with the portions of her complaint, which

according to her were not narrated by her to the police. It is,

therefore, difficult to accept the prosecution's case that it was the

appellant who had assaulted his father at the relevant time.

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Non-examination of Tatoba Zagade and Mangal Kadam also

results in drawing an adverse inference against the prosecution

for withholding the evidence of these two material witnesses,

even though they have been cited as witnesses in the charge-

sheet. The prosecutor did not confront PW-1 Laxmi Zagade qua

her complaint bringing to her notice the contradictions. It is,

therefore, difficult to rely upon the said complaint (Exh.22) as the

one lodged by PW-1 Laxmi Zagade, for, she had clearly denied of

lodging any such complaint. The evidence of PW-1 Laxmi

Zagade, therefore, is of no assistance to the prosecution in

bringing home the guilt of the appellant.

14. There is one more conspicuous aspect of this case which would

go to its root. The prosecution's case is that one Dr. Prakash

Deshmane had examined the deceased immediately after the

incident and declared him dead. Surprisingly, he had not been

cited as an important prosecution witness in the charge-sheet for

the reason best known to the Investigating Officer. As a matter

of fact, he would have been the best witness and an expert to

opine as to whether the deceased was alive or otherwise when he

immediately examined him on the spot itself. No explanation

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has been given by the prosecution for not citing Dr. Prakash

Deshmane as its witness, which would also lead to drawing an

adverse inference against the prosecution.

15. It appears that the defence had admitted the memorandum and

discovery panchanama executed at the behest of the appellant

under Section 294 of the Criminal Procedure Code. However,

even if it has been admitted by the defence as regards

genuineness of the said document, yet, the learned Additional

Sessions Judge ought to have exercised his judicial discretion

requiring the signatures of the pancha witnesses to be proved by

examining them. This is because it is a very important piece of

evidence to connect the appellant with the crime. The only

evidence on record is of the Investigating Officer, PW-2 Sanjay

Tathe according to whom, while in police custody, the appellant

made a statement that he would recover the stone, which was

used in committing the offence. According to this witness, the

appellant led the team to his house in a jeep and then he took out

the stone kept beneath cottonwood. He had also produced his

clothes kept on a stick in the house. Those articles were seized

under the panchanama. This witness even does not say as to

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whether there were blood stains on the clothes of the appellant

which were said to have been recovered at the instance of the

appellant. As per the evidence of PW-2 PSI Sanjay Tathe, the

weapon of offence i.e. the stone, was disinterred at the instance

of the appellant from beneath the heap of cottonwood and it was

stained with blood. It would be quite unsafe to accept and

believe the Investigating Officer sans any evidence of an

independent panch witness.

16. The Chemical Analyzer report (Exh.12) in respect of the articles

seized by the Investigating Officer is as below :-

"Description of articles contained in parcels :

1. Earth and dung wrapped in paper labelled - A1

2. Earth and dung wrapped in paper labelled - A-2

3. Blanket wrapped in paper labelled - B-1

4. Bandi (cut and torn) wrapped in paper labelled -

B-2

5. Chaddi wrapped in paper labelled - B-3

6. Dhoti wrapped in paper labelled - B-4

7. Stone wrapped in paper labelled - C-1

8. Full shirt wrapped in paper labelled - C-2

9. Full pant wrapped in paper labelled - C-3

RESULT OF ANALYSIS

- Exhibit (1) is mixed with blood.

- Exhibit (3) and (5) are stained with blood at places.

- Exhibit (4) has moderate number of blood stains ranging from 0.1 cm to 10 cms in diameter spread at places.

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- Exhibit (6) has innumerable blood stains ranging from 0.1 cm in diameter - to big blood stains spread at places.

- Exhibit (7) is stained with blood

- Exhibit (8) has few blood stains ranging from 0.1 cm to 1 cm in diameter.

- spread at places

- Exhibit (9) has two blood stains each of about 0.5 cm in diameter at left bottom.

- No blood is detected on exhibit (2).

- Spacies origin and grouping results are as follows. -

                    Ex. No.          Origin                Grouping
                       1.            Human               Inconclusive
                       3.            Human                       'A'
                       4.            Human               Inconclusive
                       5.            Human                       'A'
                       6.            Human                       'A'
                       7.            Human                       'A'
                       8.            Human                       'A'
                       9.            Human                       'A'

17. The Chemical Analyzer's report indicate that stone (article 7) was

found with human blood of 'A' group. The spot panchanama did

not show existence of any stone. The question is whether it can

be safely inferred that it was the appellant who was the only

person knowing as to where the stone was concealed? However,

the evidence to that effect is not satisfactory and convincing in

the absence of evidence of an independent panch witnesses.

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18. It is apparent that the place from where the stone was said to

have been recovered is an open space. The possibility of

someone else had kept the stone over there cannot be totally

ruled out. The learned Additional Sessions Judge erred in

reasoning that even though the courtyard was an open space, it

cannot be frequented by all and sundry. It is of common

knowledge that in the village, the villagers wander and take any

path convenient to them to reach their destinations. The

appellant, therefore, cannot be fastened with both the knowledge

and authorship of concealment. Only because human blood of 'A'

group was found over the said stone does not ipso facto mean

that it belongs to the deceased only because there is no evidence

on record whether the appellant was also medically examined

and that there were no injuries on his person. There was human

blood on the clothes of the appellant as per the report of the

Chemical Analyzer, which is at Sr. Nos. 8 and 9. The blood group

of the appellant is also 'A'. However, the learned Additional

Sessions Judge erroneously stated that appellant had no injuries

on his person sans any evidence to that effect. The appellant was

arrested on 4th March, 1997. The incident was dated 2 nd March,

1997. There is no evidence indicating as to how the appellant

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came to be arrested after two days and why his medical

examination was not conducted immediately after the arrest as

per Section 53 of the Criminal Procedure Code. The evidence of

the Investigating Officer - PW-2 Sanjay Tathe cannot be accepted

as a gospel truth since he is not an independent witness and

would naturally be interested in conviction of the appellant.

Even, there is no evidence that the appellant had made voluntary

statement before discovering the alleged article namely, the stone

behind his house.

19. Thus, the evidence of alleged recovery which is rather the only

important evidence relied upon by the prosecution goes away.

PW-1 Laxmi Zagade disowned the prosecution. From the

evidence available on record, it is difficult to hold that the

appellant was in fact present on the spot at the time of alleged

incident. It is equally difficult to construe that he was the author

of the injury on the vital part of the body of the deceased.

20. There is one more important feature of this case. It appears from

the evidence of the Investigating Officer, PW-2 Sanjay Tathe that

muddemal articles were not properly seized and sealed and,

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therefore, possibility of its tampering cannot be totally ruled out.

It creates a suspicion as to whether the seizure and sealing of the

muddemal property was as per the prescribed norms. As already

stated, non-examination of the panch witnesses to that effect

could lead drawing an inference that those articles were not

properly seized and sealed. The evidence of the Investigating

Officer simpliciter would not be sufficient. Merely because there

is no cross-examination of the Investigating Officer on that count

does not ipso facto mean that the prosecution has succeeded in

establishing the charge beyond all reasonable doubts.

21. It has been held by a catena of decisions that suspicion

howsoever strong cannot take the place of proof, however the

learned trial Court misread the evidence in holding the appellant

guilty for the offence of committing murder of the deceased sans

acceptable material. The judgment is based on surmises and

conjectures. Thus, the impugned judgment warrants interference

in appeal.

22. Consequently, the following order would follow :-

ORDER

(i) The appeal is allowed.

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(ii) The judgment and order of conviction and sentence passed

by the 3rd Additional Sessions Judge, Satara in Sessions Case No.

119 of 1997 dated 30th September, 2000 is quashed and set aside.

(iii) The appellant is acquitted of the offence punishable under

Section 302 of the Indian Penal Code.

(iv) The appellant be released forthwith, if not required in any

other case.

(v) The fine amount be refunded to the appellant.

(vi) The appeal stands disposed of in the aforesaid terms.

(PRITHVIRAJ K. CHAVAN, J.) (SMT. SADHANA S. JADHAV)

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