Bombay High Court
Sakharam Parvati Gaikwad vs The State Of Maharashtra on 13 September, 2022
Bench: A.S. Gadkari, Milind N. Jadhav
Appeal.1260.13.doc
ATU
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1260 OF 2013
WITH
CRIMINAL APPLICATION NO. 310 OF 2019
1. Mr. Sakharam Parvati Gaikwad.
Age: 35 years, Occ. Agriculture and Service,
R/at: Hatve (Bk) Tal. Bhor, Dist. Pune.
2. Mr. Santosh Parvati Gaikwad
Age: 33 years, Occ. Agriculture and Service,
R/at: Hatve (Bk) Tal. Bhor, Dist. Pune.
3. Mr. Mahendra alias Pintya Pandharinath Avchare
Age: 30 years, Occ. Agriculture,
R/at: Post, Bhivadi Tal. Purandar, Dist. Pune.
4. Mr. Amol alias Pappu Bhikaji Sonawane
Age: 23 years, Occ. Agriculture,
R/at - At Post Jambli, Tal. Bhor, Dist. Pune. .. Appellants.
(Ori. Accused Nos.1 to 4)
Versus
The State of Maharashtra. .. Respondent.
(Ori. Complainant)
Mr. A.Z. Mookhtiar, Advocate for the Appellants.
Mr. H.J. Dedhia, APP for Respondent - State.
CORAM : A.S. GADKARI &
MILIND N. JADHAV, JJ.
RESERVED ON : 24th August 2022.
PRONOUNCED ON : 13th September 2022.
JUDGMENT (PER : MILIND N. JADHAV,J.)
. The present Appeal challenges the legality of Judgment
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and Order dated 22.08.2013 passed by learned Sessions Court, Pune,
in Sessions Case No. 96 of 2011 convicting Appellant Nos.1 to 4
(Original Accused Nos.1 to 4) under:-
(i) Section 302 read with section 34 of the Indian Penal
Code, 1860 (for short "IPC") sentencing them to suffer
rigorous imprisonment for life and each to pay fine of
Rs.300/- and in default thereof suffer further rigorous
imprisonment of one month;
(ii) Section 452 read with 34 IPC and are sentenced to
suffer rigorous imprisonment for two years and each to
pay fine of Rs.200/- and in default thereof to suffer
suffer further rigorous imprisonment of one month;
(iii) Section 324 read with 34 IPC and are sentenced to
suffer rigorous imprisonment for one year and each to
pay fine of Rs.100/- and in default thereof to suffer
further rigorous imprisonment of one month; and
(iv) Section 506 read with 34 IPC and are sentenced to
suffer rigorous imprisonment for six months; all
sentences to run concurrently.
2. Shorn of unnecessary details, the prosecution case which
emerges from record is as under:-
2.1. That on 24.10.2010 at about 03:30 p.m. Rekha Gaikwad
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lodged a non-cognizable complaint bearing N.C case No.162 of 2010
against Shivaji Gaikwad for eve teasing her; hence Shivaji was beaten
by Parvati Gaikwad, Tanhubai Gaikwad and Rekha Gaikwad with
hands and rope on his face, head and back; Shivaji lodged a cross
complaint being NC. No.163 of 2010 against them.
2.2. On the same date, at about 09:30 p.m. PW-1 - Laxman
Shankar Gaikwad, brother of Shivaji while going to the house of village
Police Patil, Ankush Bhilare, near Laxmimata Temple in his village to
inform him about the above complaints heard screams of his mother
coming from the house of PW-3. At this time Shivaji was inside the
house of PW-3.
2.3. According to prosecution, Shivaji teased Rekha Gaikwad,
Appellant No.2's wife in the afternoon and therefore Appellants
assaulted Shivaji with "vkSrkpk f[kGk" (a gadget used for bullock cart)
and killed him inside the house of PW-3 and also assaulted PW-1
outside the house when he confronted them.
2.4. PW-1 saw Appellant Nos.1 and 2 exiting the house of PW-3
with the blood-stained weapon (vkSrkpk f[kGk) and iron rod; he was also
assaulted by Appellants. Both Shivaji and PW-1 suffered bleeding
injuries and were taken to Dr. Shinde's hospital at Nasrapur for
treatment. Since Shivaji's condition was critical, he was referred to
Sassoon hospital, Pune for further treatment. Appellant Nos.1 to 4
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were arrested on 24.10.2010. Shivaji expired in Sassoon hospital on
31.10.2010.
2.5. PW-1 is the first informant; initially investigation was carried
out by ASI - Sabale, who expired in a road accident in 2012 while on
duty. ASI - Sabale recorded statement of witnesses, prepared spot
panchanama vide Exhibit-65, prepared recovery and seizure
panchanama of muddemal properties namely iron rod and " vkSrkpk
f[kGk" used by Appellants vide Exhibits-60 and 63 respectively,
prepared panchanama of seizure of blood-stained clothes of PW-1 vide
Exhibit-70, prepared inquest panchanama vide Exhibit-67, collected
relevant documentary evidence i.e. injury certificate of PW-1 vide
Exhibit-76; he sent the seized weapons " vkSrkpk f[kGk" to C.A. vide
letters marked as Exhibit-97 to 99, collected the postmortem (PM)
report of deceased Shivaji vide Exhibit-82 and C.A. Reports vide
Exhibits-97 to 99 and completed the investigation.
2.6. After completing investigation, chargesheet was filed before
the Judicial Magistrate First Class (JMFC), Bhor. Since the offence
under Section 302 is triable exclusively by the Court of Sessions, the
learned JMFC, Bhor committed the case to the Sessions Court for trial.
2.7. Charge was framed against Appellants below Exhibit-12
under Sections 302, 326, 452 and 504 read with Section 34 IPC vide
Exhibit-12. Charge was read over and explained to Appellants in
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vernacular; Appellants denied the charges and claimed to be tried. To
bring home the guilt of Appellants, prosecution has examined 17
witnesses.
3. According to prosecution, there are 3 eye witnesses to the
actual incident of assault on Shivaji, viz; PW-2, PW-3, PW-4 whereas
PW-9 saw Appellant Nos.1 and 2 alongwith two persons going towards
the house of PW-3 and PW-10 has seen them exiting the said house
with weapons in their hands. In so far as PW-1 is concerned he has
seen Appellants exiting the house of PW-3 (spot of incident) after
assaulting his elder brother Shivaji inside the house. He has also
witnessed Appellants carrying weapons in their hands and confronted
them, upon which Appellants injured him and left. PW-1 thereafter
entered the house of Sitaram Gaikwad and saw Shivaji lying in a pool
of blood.
4. As stated, incident occurred inside the house of PW-3 -
Sitaram Gaikwad. Immediately before the incident, PW-3, PW-4 -
Shashikala, and PW-4 - Sonali (daughter of Sitaram) were sitting
outside the house and talking with Shivaji; at that time, Sonali went
inside the house to make preparation for serving dinner and laid the
plates; Shivaji followed Sonali inside the house for drinking water as
he was thirsty. At that time, Appellants arrived at the doorstep of the
house of PW-3 armed with the weapons i.e. iron rod and " vkSrkpk f[kGk"
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searching for Shivaji. PW-3 in his deposition has specifically
mentioned the names of Appellant Nos.1, 2 and 3, whereas he has not
mentioned Appellant No.4. In his cross-examination, however PW-3
has not specifically recalled and named Appellant Nos.3 and 4. PW-3
confronted Appellants when they arrived but they pushed him aside
and entered his house. Appellants were followed by PW-3, PW-4 and
one Parvatibai (not examined by prosecution) inside the house
anticipating trouble. PW-2 at that time was already inside the house.
Appellants in the presence of PW-2, PW-3 and PW-4 attacked and
assaulted Shivaji with the weapon "vkSrkpk f[kGk" and iron rod. After
the assault, Appellants left the house, however while exiting they
confronted PW-1 and injured him too. PW-4 in her deposition has
named and identified Appellant Nos.1 and 2 alongwith two others.
PW-2 - Sonali who was already present inside the house at the spot of
incident however identified all four Appellants in her deposition.
5. It is further seen from the deposition of prosecution
witnesses that when Shivaji fell to the ground his mother pleaded
before Appellants not to assault Shivaji. Appellants took her aside and
continued assaulting Shivaji, while he screamed "Ayo, Ayo, Melo,
Melo"; at that time PW-2, PW-3, PW-4 all stood aside as they feared
for their life; PW-3 even tried to intervene and stop the assault but was
pushed aside.
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6. In this context, evidence of two further witnesses is also
relevant namely PW-9 and PW-11 who have deposed to have seen
Appellants proceeding toward the house of Sitaram Gaikwad looking
for Shivaji on the road leading from Laxmimata Temple.
On the date of incident, at about 09:30 p.m. PW-9 was
washing utensils outside her house when she saw Appellants armed
with iron rod and "vkSrkpk f[kGk" walking towards the house of PW-3.
PW-9 followed them and witnessed Appellants pushing aside PW-3,
PW-4, Parvatibai and one Fulabai and barging inside the house, she
heard screams of Shivaji, "Ayo, Ayo, Melo, Melo" as also pleading by
Parvatibai to stop assaulting Shivaji. PW-9 witnessed the assault on
PW-1 while she was standing at the door of PW-3's house.
PW-11 - Ujjwala Laxman Gaikwad is wife of PW-1 and
sister-in-law of deceased Shivaji. She has deposed about the prelude
to the incident and the dispute which had taken place earlier in the
day between Shivaji and Rekha Gaikwad. She has deposed as under:
that on 24.10.2010, at about 11:30 a.m. PW-1 and PW-11 went to
their agricultural land where Shivaji was grazing his buffaloes; at
about 03:30 p.m. Rekha Gaikwad (wife of Appellant No.1), Tanhubai
Gaikwad and Parvati Gaikwad were passing through the field when
Shivaji called out ", Eg'ks" 'O buffaloe' to his buffaloes, but it was
mistaken by assumed by Rekha that she was called names; hence she
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assaulted Shivaji with hands and rope; pursuant to which Shivaji filed
N.C. complaint against her in Nasrapur Police Station. She has further
deposed that at about 09:00 - 09:30 p.m. she heard Appellants
knocking on their door and calling out for Shivaji, " , f'kok ckgsj ;s"; she
answered the door and told them that Shivaji was not at home and
had gone out, after which they left towards PW-3's house; she followed
them and witnessed the incident of assault on PW-1 alongwith PW-9
from outside the house of PW-3.
7. PW-5 - Shankar Mahadeo Pawar is a pancha witness, who
witnessed seizure of articles, viz; one iron rod (49 cm) and iron pipe
(90 cm) which are marked in evidence as "Article Nos.-6 and 7" vide
Exhibit-60. Clothes worn by all Appellants at the time of commission of
crime are seized; Appellant No.1's black colored pant and sky color full
shirt is marked as "Article Nos.8 and 9"; Appellant No.2's khaki color
pant and white color full shirt is marked as "Article Nos.10 and 11";
Appellant No.3's black colored pant and yellow colored full shirt is
marked as "Article Nos.12 and 13" and Appellant No.4's blue colored
pant and blue colored full shirt marked as "Articles Nos.14 and 15".
8. PW-12 - Pandurang Dyanu Shinde, Medical Officer treated
Shivaji and PW-1 in P.H.C. - Nasrapur on the date of incident at about
10:35 p.m. when they were brought to the hospital; PW-12 noticed
the following injuries on them:-
(i) Shivaji had CLW over the skull vertex having size 5 cms x 1-1/2
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cms by bone deep. The injury was transversely placed with
severe bleeding and wound was sutured; and
(ii) Laxman had CLW over right temporal parietal region with some
bleeding 1-1/2 cm x ½ cm; wound was sutured.
9. PW-14 - Dr. Amol Balwant Shinde is the Medical Officer who
conducted postmortem examination on the dead body of Shivaji on
01.11.2010 at around 11:00 hrs. and noticed the following injuries:
(A) External Injuries:
(i) Stitched wound present over abdomen in mid-line vertical 18
stitches in situ, 19 cm in length, curving over right side of
umbilicus, brownish;
(ii) Contusion present over posterolateral of right arm and back on
right side, 26 x 3cm bluish purple;
(iii) Stitched wound present over left parietal region, 1 cm from mid-
line, oblique anterior left, 5 cm in length, 5 stitches in situ,
brownish;
(iv) Contusion present over back on left side lower part, 12 x 8 cm,
irregular, bluish purple;
(v) Incised wound present over posteromedial of right leg, vertical
18 x 9 cm x muscle deep, brownish;
(vi) Incised wound present over posteromedial of right leg, vertical
14 x 5 cm x muscle deep, brownish;
(vii) Multiple abrasions present over left side of chest anterolaterally,
7 x 1 cm to 0.5 x 0.5 cm irregular brownish black.
All aforementioned injuries were ante-mortem.
(B) Internal Injuries:
(i) Under scalp hamatoma present over left parietal region 10 x 8
cm irregular reddish;
(ii) Skull was intact;
(iii) Meninges Dura intact;
(iv) Thin layer of Subarachnoid hemorrhage present over left
cerebral hemisphere, reddish irregular. Brian was intact,
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congested and oedematous.
(C) Thorax:
Patchy consolidated in both lungs.
(D) Abdomen:
I noticed injury corresponding to external injury no.1 as mentioned
under column No. 21.
Peritoneum and abdominal wall stitched in layers. About 100 ml blood
and blood clots were present in peritoneal cavity.
(E) Stomach:
Stomach was intact 10 ml. yellowish brownish liquid material present.
No abnormal smell perceived, mucous congested. Spleen was absent as
there was history of septicemic.
9.1. After completing postmortem, PW-14 opined that Shivaji's
death was caused due to complication following the aforementioned
injuries; PM report is marked in evidence as Exhibit-82.
10. In this context, evidence given by PW-17 assumes
significance; PW-17 is the doctor who treated Shivaji at Sassoon
Hospital for his injuries upon his admission. He has produced the
entire medical case history along with the original record before the
Trial Court which bears his signature under Exhibit-102 and Exhibit-
103. In the case papers the history was noted as assault with head
injury. In his deposition PW-17 has narrated the entire line of
treatment administered to Shivaji. He has also deposed that injuries
suffered by Shivaji are probable with the weapons used by the
Appellants i.e. iron bars and " vkSrkpk f[kGk". In his cross examination he
has stated that in the case papers it is noted that a combined injury
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statement is given by injured Shivaji and Laxman Gaikwad (PW-1). He
has reiterated that case history was given by Shivaji and not by PW-1.
This evidence shows that Shivaji was conscious and oriented when he
was admitted to the hospital.
11. Mr. A. Z. Mookhtair, learned Advocate appearing for
Appellant Nos.1 to 4 vehemently submitted that, prosecution has
failed to prove its case beyond reasonable doubt; deposition of
eyewitnesses cannot be considered because they are interested and
partisan eye witnesses and there was also delay in recording their
testimony; that there are improvements in the deposition of PW-1
which contradict his previous statement given at the time of
substantive evidence; that injuries suffered by Shivaji were not serious
as he expired seven days after the incident. Hence he has prayed for
allowing the Appeal and setting aside of the impugned Judgment &
Order.
12. PER CONTRA, Mr. H. J. Dedhia, learned APP appearing for
State has taken us through the deposition of prosecution witnesses
and with his able assistance we have perused the entire record. He has
submitted that prosecution has proved its case beyond reasonable
doubt on the basis of direct eye-witnesses' evidence i.e. ocular
evidence of PW-2, PW-3, PW-4, PW-9 and PW-10 about the presence
of Appellants at the scene of crime and commission of crime by
Appellants; that Appellant No.1 had a strong motive to kill Shivaji; that
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evidence of eye-witnesses cannot be discarded, that this evidence is
corroborated by the Medical evidence given by PW-12, PW-14 and PW-
17 and further supported by recovery and seizure evidence of articles.
Hence, he has prayed for the dismissal of the Appeal.
13. In the present case, it is seen that the substantive evidence
of PW-1 and PW-2 refers to the presence of all four Appellants,
whereas substantive evidence of PW-3 and PW-4 does not refer to the
presence of Appellant Nos.3 and 4. It is further seen that PW-9,
neighbour of PW-3 has categorically deposed that she saw Appellant
Nos.1 and 2 proceeding towards PW-3's house immediately before the
incident, hence, she followed them from a distance and thereafter
when she neared the house of PW-3, she saw Appellant Nos.1 and 2
exiting from the house; thereafter she witnessed the assault by
Appellant Nos.1 and 2 on PW-1 (Laxman - injured witness and brother
of deceased Shivaji). This evidence of PW-9 supports and corroborates
the deposition of the eye-witnesses.
14. From a conjoint reading of the evidence of eye witnesses
relied upon by prosecution, presence of Appellant Nos.1 and 2 at the
scene of crime stands proved; there is direct evidence of eye witnesses
having seen them assaulting Shivaji with the weapon; however,
presence of Appellant Nos.3 and 4 has not been proved by the
prosecution beyond reasonable doubt and hence their presence at the
scene of offence seems doubtful. The inconsistency in the deposition
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of the substantive evidence given by the eye witnesses examined by
prosecution in so far as ascertaining presence of Appellant Nos.3 and 4
at the scene of crime is not corroborated and there is a discrepancy. It
is further ascertained that in so far as Appellant Nos.1 and 2 are
concerned, they had a strong motive in view of the prelude before the
actual incident. Since Rekha Gaikwad, wife of Appellant No.2 was
allegedly teased by Shivaji, Appellant No.2 assisted Appellant No. 1 in
the offence. Medical evidence given by PW-17 - Dr. Dhondage reveals
that Shivaji was conscious and he gave the case history to PW-17;
medical case papers placed on record in evidence by prosecution
clearly show that Shivaji was conscious and oriented. Cause of death
opined by PW-17 is due to multi organ failure and due to severe blood
loss. Weapons i.e. "vkSrkpk f[kGk" alongwith iron rod used by Appellant
Nos.1 and 2 for assaulting Shivaji have been recovered and seized in
presence of PW-5 (pancha witness) and marked as Exhibit-59.
Though, human blood on clothes of Appellants has been discovered
and also seized in presence of PW-5 (pancha witness), C.A. Report
Exhibit-99 relied upon by prosecution however is inconclusive in
respect of ascertaining the blood group of the blood found on the
seized clothes.
15. In view of the above, in so far as Appellant Nos.1 and 2 are
concerned, evidence of prosecution witnesses proves their presence at
the scene of crime and commission of crime beyond all reasonable
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doubts. We do not find any infirmity with the Judgment and Order
dated 22.08.2013 passed by the learned Trial Court and do not deem
it fit to interfere with the same qua Appellant Nos. 1 and 2. However,
as far as Appellant No. 3 and No. 4 are concerned, we are of the
considered opinion that due to the material inconsistency in the
substantive deposition of eye-witnesses about their presence, it is
doubtful whether they were present at the scene of crime and most
importantly no role of assault has been attributed by any of the
witnesses to them. Hence they are entitled for benefit of doubt and is
accordingly given and they stand acquitted.
16. In view of the above discussion and findings and evidence
adduced by prosecution, Criminal Appeal No. 1260 of 2013 is partly
allowed in the above terms.
17. Hence following Order:-
(i) Criminal Appeal No. 1260 of 2013 in so far as Appellant
Nos. 1 and 2 are concerned is dismissed;
(ii) Appellant Nos. 3 and 4 in Criminal Appeal No. 1260 of
2013 are acquitted;
(iii) We are informed that by order dated 05.03.2015
passed by this Court in Criminal Application No. 1551
of 2014, Appellant Nos. 3 and 4 have been released on
bail, their P.R. Bonds and sureties shall stand cancelled;
(iv) All the concerned to act on authenticated copy of this
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Judgment and Order.
18. In view of disposal of Criminal Appeal, Criminal Application
No.310 of 2019 filed therein does not survive and is accordingly
disposed off.
19. Before parting with the Judgment, we would like to place on
record appreciation for the efforts put in by Mr. A. Z. Mookhtiar,
learned Advocate appointed by High Court Legal Services Committee,
Mumbai for espousing the cause of Appellants; he was thoroughly
prepared in the matter and rendered proper and able assistance to the
Court.
[ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]
Digitally
signed by AJAY
TRAMBAK
AJAY UGALMUGALE
TRAMBAK
UGALMUGALE Date:
2022.09.13
14:30:35
+0530
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