Bombay High Court
Sandeep @ Sandesh Tanaji Ambre vs The State Of Maharasthra on 7 March, 2022
Bench: S.S. Jadhav, P. K. Chavan
apeal-556.98.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.556 OF 1998
Sandeep @ Sandesh Tanaji Ambre,
Aged about 26 years,
Resident of Khed, Dist. Ratnagiri ... Appellant
V/s.
The State of Maharashtra ... Respondent
-------------------
Mr. Subir Sarkar, appointed Advocate for the Appellant.
Ms. M.M. Deshmukh, APP for the State.
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CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
JUDGMENT RESERVED ON : 10th FEBRUARY 2022.
JUDGMENT PRONOUNCED ON : 7th MARCH 2022.
JUDGMENT : (Per Sadhana S. Jadhav, J.)
1. The appellant is convicted for the offence punishable under
section 302 read with section 34 of the Indian Penal Code and
sentenced to suffer imprisonment for life and to pay fine of Rs.500/-
i.d. to suffer further R.I. for six months by the learned Sessions Judge,
Ratnagiri vide Judgment and Order dated 5 th June 1998 in Sessions
Case No.69 of 1996. Hence, this appeal.
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2. Such of the facts necessary for decision of this appeal are as
follows:
(i) On 15.4.1996, Rekha wife of Vijay Mirajkar lodged a report
at Khed Police Station alleging therein that she was a business partner
of Peter Alwaris. Her husband Vijay was working in the Police
Department of the State of Maharashtra. He was serving as a Police
Constable. They were blessed with two children namely son -
Rushikesh who was 5 years old and daughter - Sonia who was 9 years
old. Her maternal house is at village Dahiwali, Ramwadi, Taluka Khed,
District Ratnagiri. She was studying in J.J. School of Arts. It was a love
marriage. She was also into public relations and event management
like fashion shows, stress relief, etc. Her husband had acted in T.V.
serial 'Rajhans' produced by Peter Alwaris. The said serial was never
released on any T.V. channel. It appears that a discordant note had
struck between the husband and wife since Rekha was accompanying
Peter on his business tours in his Mercedes car. Her husband had
therefore suspected her chastity and fidelity and therefore, persistently
insisted upon his wife to sever his ties with Peter. It appears that she
was abused, assaulted and condemned for her profession and
therefore, she was constrained to approach Advocate Shakuntala
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Paranjape (P.W.4) on 14.4.1996 and sought legal advice from her in
respect of her marital discord and abusive behaviour of her husband. It
was suggested to her that she should remain away from her husband
for some time and explore the possibility of either reconciliation or
divorce and for that she should stay at her maternal house.
(ii) On 13.4.1996, her husband had raised a quarrel with her
since the food was not cooked at the right time and the cause was
attributed to Peter. He had assaulted her and warned her not to
accompany Peter in his Mercedes car.
(iii) On 14.4.1996 at about 3.15 pm she left her house along
with Peter in his car as he was to drop her to her maternal house. On
their way, they had stopped at the house of a friend. A friend of Peter
i.e. Dinesh Joshi and Suresh Jadhav had accompanied them. They
reached Dahiwali at about 5.00 am. At about 5.30 am, they noticed
that the tyres of the car were punctured at the time when Peter and his
friends were to return to Bombay. There was darkness. They noticed
that someone had focused torch light on Peter. One person asked who
is Peter and at that juncture Peter was assaulted by axe. In the torch
light, she saw that the assailant was none other than her husband, she
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was shocked as she never expected her husband to go to an extent of
killing someone. Upon sustaining the first injury, Peter had fallen to the
ground and thereafter, Vijay had inflicted two to three blows of axe on
his person. She had identified her husband in the torch light and
expressed her astonishment and thereafter, Peter had fled. Peter had
succumbed to the injuries on 15.4.1996. On the basis of her report,
Crime No.66 of 1996 was registered at Khed Police Station for the
offence punishable under section 302 r/w 34 of IPC against Vijay
Mirajkar and his driver Sandeep @ Sandesh Ambre. In the present
case, despite several efforts, the prosecution could not secure the
presence of the complainant and hence, her evidence was not
recorded. The original accused no.1 is reported to be dead and hence,
the appeal as against original accused no.1 stands abated. Therefore,
in present appeal the case against accused no.2 needs to be discussed.
(iv) At the trial, the prosecution examined as many as 9 witnesses to
bring home the guilt of the accused.
3. The prosecution has placed implicit reliance upon the
evidence of Dinesh Govind Joshi - (P.W.1), Suresh Jadhav (P.W.2),
Balkrishna Kadam (P.W.3), Adv. Shakuntala Paranjape (P.W.4), Vasant
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Chavan (P.W.8) and Gajanan Juikar (P.W.9).
4. PW1 - Dinesh Joshi had accompanied the deceased Peter
on the unfateful night of 14.4.1996 alongwith Rekha Mirajkar and
Suresh Jadhav. According to him, he was a good friend of Peter who
was producer of T.V. serials. In the intervening night of 14th and 15th
April 1996, Peter had requested him to accompany them as P.W.1 was
able to drive Mercedes car which was left hand drive. He was informed
by Peter that Rekha is in distress as her husband had assaulted her on
the previous night and therefore, she along with her children were to
be dropped to her maternal house at Dahiwali. They all left for
Dahiwali. They had dinner at Poladpur at midnight. They reached
village Dahiwali at 3.00 am. The approach road to Dahiwali was
rough, there were cobblestones on the road and therefore, they parked
the car near to her maternal house. She borrowed lantern from a
family which was acquainted with her and they walked to her maternal
house. The neighbour who had accompanied them with a lantern had
returned. They had tea at the house of her parents. They halted there
for about one and half hour. Thereafter, they all proceeded towards the
car as Peter and his friends were to return to Mumbai. Rekha along
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with her father were carrying torches with them to show the road.
They realised that the tyre of the car was punctured. Peter was
examining the tyre. At that juncture, they saw two persons
approaching them. One of them verified the identity of Peter. They saw
Vijay in the torch light. Suddenly, Vijay had inflicted a blow of axe on
the head of Peter. Rekha attempted to rescue him but failed. Thereafter,
Vijay had inflicted two more blows. She expressed her astonishment
upon seeing her husband. The friends had rushed to the house as they
were afraid and then they saw that Vijay and his driver had fled in the
jeep and information was given to the Police Patil by Rekha's father.
They approached the police station and Rekha lodged the FIR. The
person accompanying Vijay was his driver i.e. the present appellant.
Both the accused were identified in the Court.
5. It is elicited in the cross-examination that the statement of
P.W.1 was not recorded by the police at the time of lodging of the FIR
although he was in the police station for an hour. They had returned to
the scene of offence along with the police. The statement of Rekha was
recorded on the basis of which the offence was registered. He had no
personal knowledge about Rekha. P.W.1 admits that he had not seen
any of the accused before the incident. He had been summoned for
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Test Identification Parade but since there was an objection by accused
no.1 it was delayed. P.W.1 is the eye-witness to the incident.
6. P.W.2 - Suresh Jadhav had accompanied Peter, Rekha and
Dinesh (P.W.1) to Dahiwali on the unfateful night of 14 th and 15th April
1996. His evidence is consistent with the evidence of P.W.1. He also
claims that he was not acquainted with accused no.1 or 2 prior to the
incident but had knowledge that Rekha was a business partner of Peter.
He was introduced to Rekha just one and half month prior to the
incident. His recitals of the incident have not been shattered in the
cross-examination. He is an eye-witness to the incident.
7. P.W.3 - Balkrishna Kadam was running a shop near the
scene of offence. Since he hailed from the same village, he was
acquainted with Rekha and her family. On 15th April 1996, he had seen
a white coloured trax- jeep racing from front of his shop. The husband
of Rekha was in the jeep and the other person was driving. He had
only seen accused no.1 when he had visited the maternal house of
Rekha. There is an omission of the fact that he had disclosed to the
police that he had seen the jeep racing from front of his shop at the
relevant time.
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8. The post-mortem notes are at Exh.35. The cause of death is
"shock due to fracture of skull with brain injury".
9. The prosecution has examined Adv. Ms. Shakuntala
Paranjape - P.W.4 in order to establish that there were matrimonial
disputes between the first informant and the accused no.1 and
therefore, she had taken legal advice from P.W.4. According to her, the
first informant had informed her that she had withdrawn from the
house of her husband along with her children without any belongings
as she was brutally beaten by her husband with a stick due to which
she could not even walk properly. P.W.4 had in fact, noticed that she
could not walk properly. She had even noticed weal marks on her
body were blue and black in colour. She had advised her to approach a
Doctor and obtain a certificate. She appeared to be in a state of
confusion as she was a mother of two children. It is elicited in the
cross-examination that she had referred deceased 'Peter' as her 'lover'.
The cause for the quarrel was that she had accompanied Peter, the
Director of a T.V. serial to Delhi. P.W.4.
10. P.W.8 - Vasant Chavan was officiating as a police officer at
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Khed Police Station. On 15.4.1996 he was informed by his colleague
Salve who summoned him to the police station urgently as a murder
has taken place at village Dahiwali. When he reached the police station
he saw the police patil of Dahiwali along with P.W.1 and P.W.2. P.W.1
had refused to lodge a formal FIR and requested the police to
accompany him to the scene of offence. They saw the dead body of
Peter at the spot. Rekha had disclosed the incident to him. Thereafter,
he had recorded the FIR and registered Crime No.66 of 1996 and had
done initial investigation such as conducting of scene of offence
panchanama (Exh.32). Upon enquiry with Bhandup Police Station he
had learnt that accused no.1 had not attended the duties from 13 th
April 1996. He arrested accused no.2 on 17 th April 1996 whereas
accused no.1 was absconding. At the stage of hearing of the bail
application, Rekha had not supported the prosecution and had filed an
affidavit denying all allegations levelled against accused no.1. On
1.08.1996, accused no.1 suo-motu appeared before the police. He was
nominally arrested. Accused no.1 was visiting the police station for 10
days and during that period he was interrogated. Charge-sheet was
filed on 3rd August 1996.
11. P.W.9 - Gajanan Juikar was entrusted the investigation of
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Crime No.66 of 1996 at Khed Police Station on 28 th August 1996. On
21st April 1997 police custody of the accused was obtained. The
Executive Magistrate, Ratnagiri was requested to hold Test
Identification Parade. It is admitted in the cross-examination that the
lacunas in the earlier part of the investigation was noticed by P.W.8 and
therefore, P.W.9 was entrusted with the investigation. He had seized
the cassette of the serial 'Rajhans' from the house of the deceased,
however, the attempts to draw a transcription of the same had failed.
12. The learned counsel for the appellant i.e. original accused
no.2 Sandeep Ambre has vehemently submitted that the prosecution
has not recorded the evidence of the first informant and hence, the
contents of the FIR have not been proved and therefore, the contents
of the FIR are not admissible. It is further argued that the first
informant was the only person who could identify accused no.2 as the
driver of the vehicle at the time of incident and the appellant was
unknown to P.W.1 and P.W.2. Moreover, it appears from the evidence of
the witnesses that the T.I.P. was not held. There is no recovery at the
instance of accused no.2. There was no motive on the part of the
accused no.2 to eliminate the deceased. Hence, he deserves to be
acquitted.
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13. Per contra, the learned APP has supported the verdict of
the trial court and has submitted that the appellant herein was
working as a driver of the accused no.1. He had accompanied accused
no.1 to Dahiwali. He had shown the torch light to the accused no.1 in
order to identify the deceased as it was necessary at that juncture since
there were two unknown people alongwith the deceased. That, the
appellant has facilitated the assault by accused no.1 and therefore, he
deserves to be convicted with the aid of section 34 of IPC.
14. We have gone through the records meticulously with the
help of the respective counsel and perused the evidence adduced by
the prosecution.
15. It is true that the prosecution has failed to examine the first
informant i.e. Rekha the wife of accused no.1. However, it cannot be
ignored that the law was set in motion at the instance of Rekha. As
there is specific mention about Advocate Shakuntala Paranjape whom
she had visited on 13th April 1996 and this fact was within the
exclusive knowledge of the complainant.
16. The prosecution had realised that it would be futile to
examine the first informant as she had resiled from her case at the
stage of hearing of the anticipatory bail application itself.
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17. The prosecution has examined two eye-witnesses i.e. P.W.1
and P.W.2 who had accompanied the first informant and the deceased
to Dahiwali on the unfateful night and were helping the deceased to
inspect the tyres of the car when he was assaulted by accused no.1.
18. There is clinching evidence against the original accused
no.1 however, the appeal stands abated as against accused no.1.
Hence, it would be necessary to examine the evidence against the
present appellant who is originally accused no.2.
19. The substantive evidence of P.W.4 would establish that the
matrimonial relations between the spouses was such that there was a
possibility of irretrievable breakdown of their marriage and therefore,
she had advised her to take some time to think as to whether she
would reconcile or part ways. Hence, she had advised her to stay at her
maternal house for some time. The weal marks on the body of Rekha
would establish that the accused no.1 had brutally assaulted her. The
accused no.1 was annoyed with his wife's association with Peter and
therefore, he had a motive to eliminate Peter.
20. In view of this background, it cannot be said that the
accused no.2 had any motive to eliminate Peter. The factum of his
working with accused no.1 as a driver was only within the knowledge
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of Rekha and the fact that she has not been examined would go to the
root of the matter as far as his identification is concerned. This has to
be read coupled with the fact that no test identification parade was
made to ascertain as to whether the very involvement and arrest of the
present appellant was leading the investigating agency in the right
direction after ascertaining and determining the identity of the accused
no.2.
21. Even if it is presumed that the present appellant was in
service of the accused no.1 in the capacity of a Driver, there is no
evidence on record worth its name to show that accused no.2 had any
knowledge about the intention of the accused no.2 in visiting Dahiwali
at such odd hours. No knowledge can be attributed to him as to
whether the accused no.1 would assault the deceased with an axe.
There is no evidence to show that he had any knowledge that the
accused was carrying an axe in the car as the accused no.1 was the
owner of the car. And even if he had knowledge, it would not establish
that the accused no.1 would use the same to commit murder of Peter.
It is doubtful as to whether he even knew about the relationship of the
accused no.1 or his wife with Peter. There is no material to show that
the accused no.2 had facilitated or aided the accused no.1 in
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committing the murder of Peter. In view of this, it can be safely
inferred that the prosecution has failed to adduce any evidence worth
its name and establish that the accused no.2 had any role to play in the
commission of the murder of Peter at the hands of accused no.1. There
is absence of motive, intention and overt act which can be attributed to
the accused no.2 i.e. the present appellant.
22. In cases such as the present one, in the absence of any
cogent, consistent, convincing and admissible evidence, it would be
difficult to record a conviction against the accused for the offence
punishable under section 302 r/w 34 of IPC. There is no material to
show that the present appellant in any manner had shared the
common intention with accused no.1 nor there was time for common
intention to develop at the spur of the moment and a conviction of
such nature would be unjustified. The prosecution has failed the guilt
of the accused no.2 beyond reasonable doubt.
23. The learned counsel appointed for the appellant has taken
his best efforts to assist the Court. Hence, he is entitled for the
professional fees to espouse the cause of the appellant.
24. Hence, we pass the following order:-
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ORDER
(i) The Criminal Appeal is allowed;
(ii) The conviction and sentence imposed upon the appellant vide
Judgment and Order dated 5th June 1998 passed by the
learned Sessions Judge, Ratnagiri in Sessions Case No. 69 of
1996 is hereby quashed and set aside;
(iii) The appellant is acquitted of all the charges levelled against
him. Bail bonds stand cancelled;
(iv) Fine amount, if paid, be refunded;
(v) Appeal is disposed of accordingly.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
Digitally signed
by PALLAVI
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MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.03.08
16:46:16
+0530
