Bombay High Court
Ashish Bharat Jadhav vs The State Of Maharashtra on 3 January, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2024:BHC-AS:1619-DB
NISHA Digitally signed by NISHA
SANDEEP CHITNIS
SANDEEP Date: 2024.01.15
CHITNIS 12:10:54 +0530
203-apeal.538&484.2014(J)doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.538 OF 2014
Ashish Bharat Jadhav
Age 25 years, Occ:Student,
R/a. Yashodeep Chowk, Kadu Chawl,
Behind Joshi STD, Warje Malwadi,
Pune. (At present lodged in Yerawada ...Appellant
Central Prison, Pune). (Original Accused No.1)
Versus
1. The State of Maharashtra
2. Naina Shivprasad Naik
Age-adult, Occ:housewife,
R/a. C/o. Ramprasad Babanrao Naik,
Ganpati Matha, Naik Building,
Warje, Malwadi, Pune. ...Respondents
WITH
CRIMINAL APPEAL NO.484 OF 2014
1. Sameer Ashok Bhagwat
Age: 33 Years,
Residing at: Sinhagad Road
Anand Nagar, Ganesh Baug,
Bldg No-C, Flat No 3, Pune
2. Kapil Vinod Ramteke
Age: 27 Years
Residing at:
N. S. Chitnis 1/19
::: Uploaded on - 15/01/2024 ::: Downloaded on - 28/01/2024 10:23:41 :::
203-apeal.538&484.2014(J)doc
Chaitanya Chowk,
Kakde Residency ...Appellants
Flat No 10, Warjemalwadi, Pune. (Original Accused Nos 2&3)
Versus
The State of Maharashtra
[Through The Warjemalwadi Police
Station, Pune] ...Respondent
Mr. Priyal G. Sarda a/w Ms. Seema Dighe, for the Appellant in
Appeal/538/2014.
Mr. Ashish Vernekar i/b Mr. Satyavrat Joshi, for the Appellants in
Appeal/484/2014.
Mr. R. M. Pethe, A.P.P for the Respondent - State.
Ms. Farhana Shah, Appointed Advocate for the Respondent No.2 in
Appeal/538/2014.
CORAM : REVATI MOHITE DERE &
MANJUSHA DESHPANDE, JJ.
DATE : 3rd JANUARY 2024
ORAL JUDGMENT (Per Revati Mohite Dere, J.) :
1. The aforesaid appeals are directed against the Judgment
and Order dated 26th May 2014, passed by the learned Additional
Sessions Judge, Pune in Sessions Case No.438 of 2008. By the said
Judgment and Order, the appellants have been convicted and
203-apeal.538&484.2014(J)doc
sentenced as under;
- Appellant - Ashish Bharat Jadhav is convicted, for the offence
punishable under Section 302 of the Indian Penal Code ('IPC') and
is sentenced to suffer imprisonment for life and to pay a fine of
Rs.10,000/-, in default, to undergo simple imprisonment for 1 year.
On realization of fine amount, compensation was directed to be paid
to the wife and minor children of deceased - Shivprasad Babanrao
Naik, under Section 357(1) of the Code of Criminal Procedure;
- Appellant - Ashish Bharat Jadhav, Appellant - Sameer Ashok
Bhagwat and Appellant - Kapil Vinod Ramteke, are convicted, for the
offence punishable under Section 307 r/w 34 of the Indian Penal
Code. Appellant - Ashish Jadhav, is sentenced to suffer simple
imprisonment for 10 years and to pay a fine of Rs.10,000/-, in default,
to undergo simple imprisonment for 1 year and Appellant - Sameer
Bhagwat and Appellant - Kapil Ramteke, are sentenced to suffer
simple imprisonment for 3 years each, and to pay fine of Rs.2,000/-
each, in default, to undergo simple imprisonment for 3 months each;
203-apeal.538&484.2014(J)doc
- Appellant - Ashish Jadhav is also convicted, for the offence
punishable under Section 4(25) of the Arms Act, and is sentenced to
suffer simple imprisonment for 3 years, and to pay a fine of
Rs.2,000/-, in default, to undergo simple imprisonment for 6 months;
All the sentences were directed to run concurrently.
2. The prosecution case in brief, is as under :-
The incident is alleged to have taken place on 14 th March
2008 at about 10:00 p.m., in front of Jaibhavani Dhaba on Highway
Road, Warje, Malwadi, Pune. In the said incident, accused No.1 -
Ashish Bharat Jadhav, is alleged to have assaulted Shivprasad Naik
(deceased), and Ajit Godambe (PW6) with a sword, whereas accused
No.2 - Sameer Ashok Bhagwat and accused No. 3 - Kapil Vinod
Ramteke, are alleged to have assaulted Shivprasad and Ajit, by fists
and kick blows. The said incident is alleged to have been witnessed by
3 persons i.e. by Rakesh Rajkumar Tiwari (PW2); Mahesh Chakankar
and Rahul Godse. According to PW1 - Ramprasad Babanrao Naik
203-apeal.538&484.2014(J)doc
(brother of deceased - Shivprasad), he learnt of the incident of assault
on his brother from his sister-in-law, pursuant to which, he asked his
friend - Rohan Tiwari to find out what had happened; and that
accordingly, Rohan had informed him of an assault on his brother
and that his brother was severely injured and was shifted to Deenanath
Mangeshkar Hospital. On reaching the hospital, the police arrived
and recorded the statement of Ramprasad (PW1), which was treated
as an FIR (Exhibit - 70). The said FIR was lodged as against unknown
persons. According to PW1 on 16 th March 2008, he learnt from
Rakesh Tiwari (PW2); Mahesh Chakankar and Rahul Godse, that they
had witnessed the incident and that in the said incident, Ashish Jadhav
(A1) had assaulted Shivprasad with a sword and Sameer Bhagwat (A2)
and Kapil Ramteke (A3) had assaulted Shivprasad by fists and kick
blows. Pursuant thereto, PW1's supplementary statement came to be
recorded.
After investigation, charge-sheet was filed in the said case
in the Court of the learned Judicial Magistrate, First Class, Pune. Since
the offences were triable by the Court of Sessions, the case came to be
203-apeal.538&484.2014(J)doc
transferred to the Court of Sessions, for trial.
The prosecution in support of its case examined 11
witnesses i.e. PW1 - Ramprasad Babanrao Naik (complainant and
brother of deceased - Shivprasad); PW2 -Rakesh Rajkumar Tiwari
(eye-witness); PW3 - Kiran Laxmanrao Deshpande, panch to the spot
panchanama; PW4 - Dr.Ramesh Sonba Dumbre, doctor who treated
Shivprasad at Deenanath Mangeshkar Hospital; PW5 - Dr. Naresh
Kantilal Lodha, doctor who treated Shivprasad at Lodha Hospital and
Maternity Home, Pune, where he was first taken, soon after the
incident; PW6 - Ajit Sopan Godambe, injured eye-witness (hostile);
PW7 - Dr. Ajay Anirudh Taware, doctor who conducted the post-
mortem on the deceased; PW8 - Maruti Balwant Powar, panch to the
recovery of clothes of Ashish Jadhav (A1) and of the sword used by
Ashish Jadhav (A1), at the instance of A3 - Kapil Ramteke; PW9 -
Shivaji G. Kolpe, the officer who recorded the FIR and the statement
of the injured - Ajit; PW10 - Ramdas Rajaram Shelke, Investigating
Officer, who arrested the accused and conducted part of the
investigation and PW11 - Kisan Malkappa Pujari, also an Investigating
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Officer.
The defence of the appellants was that of total denial and
false implication. The appellants did not examine any witness in
support of their defence.
After a full-fledged trial, the learned Additional Sessions
Judge, Pune convicted and sentenced the appellants as stated aforesaid
in paragraph 1 of this judgment.
3. Learned counsel for the appellants Mr. Sarda and
Mr. Vernekar, both, assailed the judgment and order of conviction and
sentence. They submitted (i) that PW2 - Rakesh Tiwari, an alleged
eye-witness cannot be treated as a reliable witness, having regard to the
evidence that has come on record; (ii) that the prosecution had failed
to prove the spot, where the alleged incident had taken place, making
the prosecution case doubtful; (iii) that no medical certificate of PW6 -
Ajit Godambe i.e. the injured eye-witness was produced by the
prosecution to show that the allegation of assault on PW6 was
203-apeal.538&484.2014(J)doc
believable; and (iv) that the recovery of clothes and sword at the
instance of the appellant No.3 - Kapil was doubtful, considering that
the discrepancy in the weapon used and weapon recovered and other
discrepancies in the said evidence.
4. Learned APP as well as Ms. Farhana Shah, learned
appointed advocate for the respondent No.2, supported the judgment
and order and submitted that no interference was warranted in the
same.
5. In order to appreciate the submissions advanced by the
learned counsel for the respective parties, it would be necessary to
consider the evidence that has come on record. We may note at the
outset, that it is not disputed that Shivprasad (deceased) died a
homicidal death. There is evidence of PW4 - Dr. Ramesh Dumbre,
PW5 - Dr. Naresh Lodha, and PW7 - Dr. Ajay Taware i.e. the
doctors who treated Shivprasad and the doctor who conducted the
203-apeal.538&484.2014(J)doc
post-mortem, which clearly show that the deceased died a homicidal
death. As noted above, the same is also not disputed by the learned
counsel for the appellants.
6. The question that arises for consideration is whether the
appellants are the authors of the said injuries caused to the deceased -
Shivprasad. Before we proceed to consider the same, we may note that
PW6 (injured eye-witness) turned hostile and hence, the learned trial
Judge acquitted the appellants vis-a-vis the charge as against the
appellants of attempt to cause the murder of PW6 i.e. under Section
307 r/w Section 34 of the IPC. Thus, in the present appeal, the
appellant - Ashish Jadhav is facing conviction for the offence
punishable under Section 302 of the IPC and the other 2 appellants i.e
appellant - Sameer Bhagwat and appellant - Kapil Ramteke, are
facing conviction for the offence punishable under Section 307 r/w 34
of the IPC.
203-apeal.538&484.2014(J)doc
7. PW1 - Ramprasad Naik (first informant and brother of
deceased - Shivprasad) has stated in his evidence that he knew Rohan
Tiwari, Rakesh Tiwari (PW2), Rahul Godse and Mahesh Chakankar, as
well as the accused. He has stated that the incident took place on 14 th
March 2008 and that he learnt of the same, when he was returning to
Pune from Satara, from his sister-in-law about the assault on
Shivprasad. PW1 has further stated that he requested his friend Rohan
Tiwari (brother of PW2 - Rakesh Tiwari), to find out what had
happened and to inform him; that accordingly, Rohan informed him
that Shivprasad was assaulted on his stomach and hands and being
severely injured was shifted to Deenanath Mangeshkar Hospital and
that he should reach Deenanath Mangeshkar Hospital; that
accordingly, he reached the said hospital and learnt that his brother
was in the ICU and was undergoing surgery; that the police arrived at
the said hospital, pursuant to which his statement was recorded i.e.
Exhibit - 70, which was treated as an FIR. The said FIR was lodged on
15th March 2008 at 2:30 a.m. as against unknown persons. According
to PW1, on the next day i.e. 16 th March 2008, Rakesh (PW2), Rahul
203-apeal.538&484.2014(J)doc
and Mahesh came to him and informed him that they were present at
Hotel Jaibhavani when the incident took place; that they heard
commotion; that on hearing the commotion, they came out of the
hotel and saw Ashish (A1) assaulting Shivprasad with a sword and 2
other persons i.e. Sameer and Kapil assaulting his brother by fists and
kick blows. He has further stated that pursuant thereto, his
supplementary statement was recorded by the police.
8. In his cross-examination, PW1 has admitted that Rakesh
Tiwari (PW2) and Rohan Tiwari were real brothers and that Rohan
was his friend and that Rohan had informed him that somebody had
assaulted Shivprasad and Ajit. The said witness has further admitted
that on reaching Deenanath Mangeshkar Hospital, he made additional
inquiry with his friend i.e. with Rohan. He has further stated that 3
months prior to the incident, there was a dispute between him and
Vijay Kale, which dispute was amicably resolved, however he suspected
that Vijay Kale and his colleague may have assaulted his brother.
203-apeal.538&484.2014(J)doc
9. The prosecution examined Rakesh Tiwari as PW2. The
said witness has stated that he knew the deceased - Shivprasad and the
complainant - Ramprasad; that Mahesh Chakankar and Rahul Godse
were his friends and that he also knew all the accused. PW2 has stated
that the incident took place on 14 th March 2008. He has stated that
he alongwith his 2 friends Mahesh and Rahul (both not examined),
had gone to Jaibhavani Dhaba for dinner, where they met Shivprasad
(deceased) and that one person was present alongwith Shivprasad. He
has stated that after dinner, he and his friends were talking outside the
hotel and that when they were sitting outside the hotel, they heard
shouts, pursuant to which, they went in the hotel; that at that time,
Ashish (A1), Sameer (A2) and Bunty @ Kapil (A3) were assaulting
Ajit Godambe (PW6); that A1 was armed with a sword and A2 -
Sameer and A3 - Kapil were assaulting Ajit (PW6) by fists and kick
blows; that when Shivprasad went to rescue Ajit (PW6), Ashish (A1)
assaulted Shivprasad, with a sword, pursuant to which, Shivprasad fell
down and thereafter, all of them are alleged to have pelted from the
spot. According to PW2, he was frightened as he wanted to go to
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work, he alongwith his 2 friends left the said spot. He has stated that
PW1 - Ramprasad was a friend of his brother - Rohan. According to
PW2 on 14th March 2008, he went to Kolhapur and returned late on
15th March and that on 16th March 2008, he learnt that Shivprasad was
serious and hence, he alongwith Mahesh and Rahul went to Deenanath
Mangeshkar Hospital, however, did not meet Ramprasad (PW1), as
Ramprasad had gone to his house; that therefore, the 3 of them went
to Ramprasad's house and narrated the incident that they had seen in
the hotel.
10. In his cross-examination, PW2 has stated that the incident
had taken place in the parking area of the hotel. The said witness has
denied the portion marked B in his statement, which reads thus; "that I
informed about the incident of assault on Shivprasad to his brother
Ramprasad" and had stated that he cannot assign any reason as to why
the same was recorded by the police. According to PW2, as he was
frightened he did not inform the incident to any person including his
brother - Rohan or the relatives of Shivprasad, when he left for
203-apeal.538&484.2014(J)doc
Kolhapur. The said witness has also admitted in his cross-examination,
that it was true that nobody assaulted Shivprasad by fists and kick
blows.
11. As far as PW3 - Kiran Deshpande, the panch to the spot
panchanama is concerned, his evidence does not further the
prosecution case, with respect to where the incident had taken place.
All that the said witness has stated is that the incident took place in
front of the Dhaba, Opposite Voyala Society, adjoining to the Service
Road. No details with respect to where the incident had actually taken
place is deposed to, by PW3.
12. A perusal of the evidence of PW2 and PW3, would reveal
that the spot at which the incident is alleged to have taken place has
not been proved by the prosecution beyond reasonable doubt.
Admittedly, no blood stains/soil were collected from the spot where the
deceased was actually assaulted. It is pertinent to note, that PW2 in his
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evidence has stated that on hearing the shout, he and his friends
entered the hotel and saw the assault on Ajit and thereafter, when
Shivprasad intervened, the assault on Shivprasad; whereas, in his cross-
examination PW2 has deposed that the incident took place in the
parking area of the hotel. It is the prosecution case that the incident
actually took place on the service road, however, neither PW3, the
panch to the spot panchanma, has spelt out the details of where
exactly the incident had taken place. As noted above, admittedly the
blood stains/soil from the spot, had not been collected. Thus, we find
that the prosecution has not proved the spot where the actual incident
of assault on deceased - Shivprasad had taken place. Admittedly,
PW6-Ajit (injured eye-witness) has turned hostile. According to the
prosecution, the said witness had sustained injuries in the said incident,
due to the assault by the appellants on him with a sword and by fists
and kick blows, however, the medical certificate of the said witness i.e.
PW6, has not been brought on record, by the prosecution.
203-apeal.538&484.2014(J)doc
13. Apart from the aforesaid, i.e. the spot not having been
proved by the prosecution, we also find the conduct of PW2
unnatural and his presence at the spot doubtful. According to PW2,
he knew deceased - Shivprasad and that his brother - Rohan was a
friend of PW1 - Ramprasad. He has stated that soon after the assault
on Ajit (PW6) and on Shivprasad, the appellants fled from the spot,
however, despite the same, PW2 nor the other 2 alleged eye-witnesses,
came forward to help Shivprasad and to take him to the hospital nor
informed any of his relatives. According to PW2, he was frightened
and as he had to answer call of his duty i.e. to drive the vehicle to
Kolhapur, he did not inform the incident to anybody till 16 th March
2008. Admittedly, the prosecution has not examined the other 2
alleged eye-witnesses i.e. Rahul or Mahesh. Thus, we find it difficult
to place implicit reliance on the sole testimony of PW2, having regard
to what is stated hereinabove and more particularly, when there is a
clear discrepancy in his evidence, as to where the incident had taken
place i.e. in the hotel or in the parking area or on the service road,
more particularly, when it is the prosecution case, that the incident
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took place on the service road.
14. Apart from the aforesaid, there is recovery of clothes of
appellant - Ashish Jadhav and sword used by him, at the instance of
the appellant - Kapil Ramteke. It is pertinent to note, that all the 3
accused were arrested by the police on 17 th March 2008 at 6:30 p.m.
and recovery of the alleged articles at the instance of appellant No.3 -
Kapil was at 7:30 p.m. on the very same day. Recovery of a sword
and clothes of appellant - Ashish, at the instance of appellant - Kapil,
appears to be doubtful, inasmuch as, having regard to the evidence that
has come with regard to same i.e discrepancy with respect to the
description of the weapon. It is alleged that what was used in the
assault was a sword having an iron hilt, whereas, what was produced
before the Court was a sword with a wooden hilt. The prosecution has
also not proved that the house from where the sword and clothes of
appellant - Ashish, were recovered, was in the exclusive possession of
the appellant - Kapil Ramteke, more particularly when it has come on
record that it was occupied by other family members of the appellant -
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Kapil. The CA report shows that the blood of the deceased as well as
that of the accused was inconclusive, however, the blood group found
on the sword was that of 'O' blood group and as such the learned
Judge presumed that the said blood was that of the deceased. This
analogy is difficult to comprehend, having regard to the aforesaid
evidence vis-a-vis recovery that has come on record.
15. Considering the evidence as stated aforesaid, we hold that
the prosecution has failed to prove its case as against the appellants
beyond reasonable doubt and as such the benefit of doubt will have to
be given to the appellants of the same.
16. Having regard to what is stated aforesaid, we pass the
following order:-
ORDER
i) The Appeals are allowed;
ii) The Judgment and Order dated 26th May 2014,
203-apeal.538&484.2014(J)doc
passed by the learned Additional Sessions Judge, Pune in
Sessions Case No.438 of 2008, convicting and sentencing the
appellants, is quashed and set aside;
iii) The appellants are acquitted of the offence, with
which they are charged. The appellants are set at liberty
forthwith, if not required in any other case.
17. We would like to record a word of appreciation for the
able assistance provided and the efforts taken by Ms. Farhana Shah, as
an appointed advocate for the respondent No.2, in conducting the
appeal. High Court Legal Services Committee to award fees of the
learned Appointed Advocate, as per Rules.
18. All concerned to act on the authenticated copy of this
judgment.
MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.
