Bombay High Court
Santosh S/O. Baburao Khandare vs The State Of Maharashtra on 1 March, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:4383-DB
1 CriAppeal-1094-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 1094 OF 2019
Santosh S/o Baburao Khandare
Age: 41 years, Occu: Labour,
R/o: Petkar Nagar, Sevli,
Taluka and District Jalna ... Appellant
Versus
The State of Maharashtra
Through the Police Station Officer,
Sevli Police Station,
Taluka and District Jalna ... Respondent
...
Mr. Satyajit S. Bora, Advocate for the Appellant
Mr. S. D. Ghayal, APP for the Respondent - State
...
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved on : 7th February, 2024
Pronounced on : 1st March, 2024
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. This is an Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 [for short 'Cr.PC'] against the
Judgment and Order dated 26.09.2019, passed by the learned
Additional Sessions Judge-3, Jalna, in Sessions Case
No.167/2015 convicting the Appellant for the offence
punishable under Section 302 of the Indian Penal Code, 1860
[for short 'IPC'] and sentencing him to suffer rigorous
imprisonment for life and to pay fine of Rs.10,000/-, in
default, to suffer R.I. for six months.
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2. Prosecution's case as revealed from the Police Report is as
under:
2.1 The Informant - PW - 1 [Kaikaibai Santoba Agham] is a
resident of Bhagdesawargaon in Jalna District. She and her
deceased husband - Santoba Agham were engaged in the work
of preparing wooden equipments used for the bullock-carts.
There was weekly market [Bazar] at Village Sevli on
11.08.2015. He left the residence in the morning to go to the
said weekly market to sell the said equipments. She was asked
to reach the weekly market in the after-noon. The Informant,
accordingly, went to the weekly market around 14:30 hours.
She met her husband in the weekly market. He told her that
their son - Dharma had called from Mumbai that he was
sending Rs.20,000/- on his bank account and so he was going
to bank for withdrawing the money. He asked her to purchase
the vegetables in the meanwhile. The Informant did her
purchasing and then reached near the shop of Laxman More.
There she did not find her husband. She started searching for
him. She saw that their relative deceased - Prakash Khandare
was being brought on the hand-cart by Rasu Khandare, cousin
brother - Baban Khandare and others. She noticed that
deceased - Prakash Khandare was soaked in blood and
unconscious. At that time, Baban Khandare informed her that
her husband was lying behind the liquor shop. She rushed in
that direction and saw that her husband was lying in the tin
shade. She noticed the injuries and blood oozing from the body
3 CriAppeal-1094-2019.odt
of her husband and he was unconscious. She raised shouts.
Thereafter, the people gathered and took her husband to the
Hospital.
2.2 The Informant learnt that when her husband and their
relative deceased - Prakash Khandare were passing from the
backside of country liquor shop, Santosh Baburao Khandare i.e.
the Appellant, met them and demanded money from her
husband. When her husband refused to give money, quarrel
took place between her husband and the Appellant. The
Appellant removed sharp weapon and inflicted blows on the
chest, ribs and hands of her husband. When deceased Prakash
Khandare intervened in the said quarrel, the Appellant also
assaulted him with the said sharp weapon. The Informant
lodged the Report with the Sevli Police Station against the
Appellant and Crime No.334/2015 came to be registered in the
night of 11.08.2015.
2.3 The Police went to the Hospital. Both injured persons
succumbed to the injuries. The Police prepared the inquest and
sent the dead bodies for postmortem. The Police prepared the
spot panchnama, seized the clothes of deceased and the
Appellant, arrested the Appellant, recorded the statement of
witnesses, seized the weapon at the instance of Appellant
pursuant to discovery under Section 27 of the Indian Evidence
Act, 1872 [for short 'the Act'], sent seized muddemal for
chemical analysis and collected CA reports and on completion
of investigation, the Appellant came to be Charge-sheeted.
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3. The learned Trial Court framed the Charge against the
Appellant for the offence punishable under Section 302 of IPC
vide Exhibit-2, to which, the Appellant pleaded not guilty and
claimed to be tried. To prove the Charge, the Prosecution
examined in all sixteen (16) witnesses and brought on record
the relevant documents. After Prosecution closed it's evidence,
the statement of the Appellant came to be recorded under
Section 313(1)(b) of Cr.PC. He denied the Prosecution's case
and evidence. Thereafter, the learned Trial Court passed the
impugned Judgment convicting the Appellant for the offence as
referred above in Paragraph No.1.
4. Heard Mr. S. S. Bora, learned Advocate for the Appellant
and Mr. S. D. Ghayal, learned Additional P.P. for the
Respondent - State. Perused the evidence on record.
5. It is submitted by the learned Advocate for the Appellant
that though the Prosecution claims to have examined the eye
witness to the incident, his evidence do not inspire confidence
that he witnessed the incident. He further submitted that the
version of witnesses that the oral dying declaration was made
by deceased - Prakash Khandare gets falsified in view of the
evidence that he was unconscious. He further submitted that
the discovery of weapon at the instance of Appellant is a farce.
He submitted that the other corroborative evidence on record
do not support the case of Prosecution, therefore, the Appeal
be allowed and the Appellant be acquitted.
5 CriAppeal-1094-2019.odt
6. It is submitted by the learned Additional P.P. that the
evidence of PW - 6 [Prakash Rambhau Ambhore], who is an
eye witness to the incident, is required to be considered in its
correct perspective. The Investigating Officer explained the
delay in recording his statement. He submitted that from the
postmortem reports, the cause of death due to severe injuries
on both the deceased has been proved. He submitted that the
oral dying declaration was made by deceased - Prakash
Khandare to PW - 2 [Mangal Prakash Khandare] and PW - 3
[Ranjana Baban Khandare] and that corroborates the evidence
of PW - 6 [Prakash Rambhau Ambhore]. He submitted that the
clinching evidence is that of blood of deceased - Santoba
Agham on the clothes of Appellant. He submitted that the
weapon used in the assault has been seized at the instance of
the Appellant. He submitted that on the basis of proved
evidence, no interference is called for in the impugned
Judgment and Order and the Appeal be dismissed.
7. To prove the injuries and the cause of death of both the
deceased, the Prosecution examined PW - 4 [Gajanan Tateba
Palve] and PW - 5 [Vishnu Laxman Chole], who acted as the
Panchas for inquest [Exhibit - 34] of deceased - Santoba
Agham and PW - 7 [Dnyandeo Deorao Ghode] who acted as
the Panch for inquest [Exhibit - 44] of deceased - Prakash
Khandare. Their evidence show injuries on the dead bodies.
The respective Panchanamas corroborate their evidence. There
is no serious challenge to their evidence on that aspect by the
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defence. The evidence of PW - 9 [Dr. Vikas Maroti Gatkal],
Medical Officer and PW - 10 [Dr. Mohammad Sharif
Bismilahkhan Pathan] is in respect of cause of death of Santoba
Agham and Prakash Khandare, respectively.
8. The evidence of PW - 9 [Dr. Vikas Maroti Gatkal] show
that he performed the postmortem on the body of deceased -
Santoba Agham on 12.08.2015 and he found the cause of death
as 'hemorrhagic shock caused by punctured incised wound to
vital organ heart and left lung'. The postmortem report at
Exhibit - 52 is brought in his evidence. His evidence show the
following injuries on his body:
"Nature - nature of following described punctured - incised
wound is dangerous - Position, dimensions and direction -
single punctured - incised wound elliptical in shape. It is located
in the left thorns lateral and below to the nipple, 45 cms for
the top of head, and obliquely oriented with upper corner 12
cms, lower corner 4 cms away from midline to the left. It is 4
cms long and 1 cm wide at the skin surface, there is no
abrasion or bruising at wound margin. Edge are some swollen
and red. Track is 12.5 cms deep directed from left to right,
front to back and angulate slightly downward. The track
perforates the chest wall through fourth intercostal space,
perforates ungula of upper lob of left lung, the pericardium sac,
and penetrate the heart perforating the left lateral ventricle of
dimensions 2x1x1 cm. The entire wound track is infiltrated with
blood and 1200 ml of liquid and clotted blood is found in the
left chest cavity clots are rubbery and firm. There is no exit
wound."
9. The evidence of PW - 10 [Dr. Mohammad Sharif
Bismilahkhan Pathan] show that he performed the postmortem
on the body of deceased - Prakash Khandare on 12.08.2015
and he found the cause of death as "Death due to cardio
respiratory arrest, due to hemorrhagic shock, due to massive
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hemothorax with heart and lungs injuries, due to stab injury
over chest wall". The postmortem report at Exhibit - 55 is
brought on record in his evidence. His evidence show the
following injuries:
"1. Stab wound: over anterior chest Wall, size of injury was
3x6 cm, edges of injury were sharp, with bleeding from that
particular site. Injury was communicating left thoracic cavity.
2. Two stab injury over right chest wall. Posteriorly at 7 th
intercostal space. Size of first injury over right chest wall was
3x4 cm and size of second stab injury over right chest was 3x3
cm. Both these stab injuries were communicating to right
thoracic cavity."
10. From the above discussed medical evidence, it is seen
that the death of deceased - Santoba Agham and deceased -
Prakash Khandare are due to the injuries found on their bodies.
Even from the cross-examination of these two Doctors, it is
seen that the said injuries and the cause of death are not
seriously challenged. Thus, there is no difficulty in holding that
the Prosecution has proved that deceased - Santoba Agham and
deceased - Prakash Khandare died Homicidal deaths.
11. In establishing the Charge against the Appellant, the
Prosecution's case primarily rests upon the testimonies of PW -
6 [Prakash Rambhau Ambhore], who is examined as eye
witness to the incident, PW - 3 [Ranjana Baban Khandare] and
PW - 2 [Mangal Prakash Khandare] before whom the deceased
- Prakash Khandare gave oral dying declaration and PW - 1
[Kaikaibai Santoba Agham] who is the Informant / wife of
deceased - Santoba Agham.
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12. PW - 6 [Prakash Rambhau Ambhore] belong to the
Village of deceased - Santoba Agham. His evidence show that
on 11.08.2015, there was weekly market day at Village Sevli
and he had gone for purchasing in the said market. Deceased -
Santoba Agham had also come to the weekly market for selling
agricultural equipments. They met each other between 1:00 pm
to 1:30 pm. While he was returning at about 4:00 pm, he
noticed PW - 1 [Kaikaibai Santoba Agham] in the bullock-cart
and he asked her whether she wants to return to the Village.
PW - 1 [Kaikaibai Santoba Agham] asked him whether he had
seen her husband. Therefore, he went in search of her
husband. When he reached near the house of Appellant, which
was near the country liquor shop, he heard that quarrel was
going on in the house of Appellant and so he went near the
house of Appellant and heard loud talking between the
Appellant and both the deceased i.e. Santoba Agham and
deceased - Prakash Khandare. He entered the house of
Appellant. The Appellant went in the Chappar [front side room
used for cooking] of the house and brought a knife. The
Appellant stabbed in the stomach of deceased - Santoba Agham
with the said knife and when deceased - Prakash Khandare
went to intervene, the Appellant stabbed him on the neck,
waist and chest with the said knife. Thereafter, the Appellant
threw the knife and fled away towards weekly market.
13. PW - 6 [Prakash Rambhau Ambhore] got frightened and
narrated the said incident to PW - 1 [Kaikaibai Santoba
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Agham], who is also his maternal aunt. His maternal aunt and
two other women rushed towards the spot of incident. The
injured - Prakash Khandare was semi conscious and was taken
to Hospital on the hand-cart and deceased - Santoba Agham
was lying in the house of Appellant. As the injured - Prakash
Khandare and Santoba Agham questioned the Appellant as to
why he was behind Yamunabai [divorced wife of the
Appellant], the Appellant committed the said crime. He knew
the Appellant and identified him at the time of his evidence.
14. The cross-examination of PW - 6 [Prakash Rambhau
Ambhore] show that, his evidence that, he entered the house
of Appellant, the Appellant went in the Chappar of house and
brought the knife, the Appellant stabbed on the right side of
deceased - Santoba Agham [only to the extent of right side],
the Appellant stabbed on the neck and waist of deceased -
Prakash Khandare, the Appellant threw the knife in the house
and ran away were the improvements/omissions, which were
proved from the evidence of PW - 16 [Prakash Shamrao
Sapkale], who was the Investigating Officer.
15. Though PW - 6 [Prakash Rambhau Ambhore] claims to
be the eye witness to the incident and attended funeral of
deceased - Santoba Agham on the next day, he did not inform
anybody that he witnessed the incident. Though, Police visited
his house on the next day of funeral of deceased - Santoba
Agham and he met the Police, he did not narrate the incident
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to the Police. Admittedly, his statement is recorded on
19.08.2015, which is after eight (08) days from the incident.
Though deceased - Santoba Agham and he were related, he
maintained silence about his witnessing the incident for eight
(08) days. This is really strange.
16. The cross-examination of PW - 16 [Prakash Shamrao
Sapkale], who investigated the crime, show that till 19.08.2015
no witness informed him about the presence of PW - 6
[Prakash Rambhau Ambhore] on the spot of incident. It has
come in his evidence that on the next day of incident, he
visited the village of PW - 6 [Prakash Rambhau Ambhore] and
on that day, he did not inform him about the incident. The
evidence further show that he inquired with PW - 6 [Prakash
Rambhau Ambhore] about the delay of eight (08) days for
giving statement and he told that as he was a poor person and
patient of blood pressure, the delay was caused. His evidence
show that PW - 6 [Prakash Rambhau Ambhore] on his own
appeared before him for giving statement. The explanation put-
forth by the Prosecution's witness for delay in giving statement
is unacceptable.
17. Further, PW - 1 [Kaikaibai Santoba Agham] nowhere
deposed that PW - 6 [Prakash Rambhau Ambhore] met her in
the weekly market and conversation took place between them
as deposed by PW - 6 [Prakash Rambhau Ambhore]. Thus, in
the backdrop of the above discussed evidence available on
record, the evidence of PW - 6 [Prakash Rambhau Ambhore]
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that he witnessed the actual incident, is required to be seen
with doubt.
18. The evidence of PW - 3 [Ranjana Baban Khandare] show
that deceased - Santoba Agham was her maternal uncle and
deceased - Prakash Khandare was cousin brother of her
husband. The Appellant was also in their relation. The
Appellant married one Yamunabai, however, there was divorce
between the Appellant and Yamunabai. Even then, the
Appellant used to go and meet his divorced wife - Yamunabai.
On 11.08.2015 in between 4:45 pm to 5:00 pm, when she was
in the house, she heard weeping of PW - 2 [Mangal Prakash
Khandare]. So she herself and her husband went to the house
of PW - 2 [Mangal Prakash Khandare] and inquired as to
what happened. The PW - 2 [Mangal Prakash Khandare]
informed her that the Appellant had beaten her husband. They
all rushed towards the house of Appellant. Both the deceased
i.e. Santoba Agham and Prakash Khandare were seen lying in
the house of Appellant in a pool of blood. Her husband went
towards the market and brought the hand-cart and took injured
- Prakash Khandare on the hand-cart. On the way, they met
PW - 1 [Kaikaibai Santoba Agham]. Her husband informed PW
- 1 [Kaikaibai Santoba Agham] that her husband deceased -
Santoba Agham was lying in the pool of blood.
19. Further, the evidence of PW - 3 [Ranjana Baban
Khandare] show that, they brought injured - Prakash
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Khandare to their house on the hand-cart. They noticed injuries
on the chest of injured - Prakash Khandare and inquired with
him about the same. "Injured-Prakash Khandare narrated that
he and deceased - Santoba Agham had been to the house of
Appellant to convince him as to why he was wandering behind
Yamunabai after divorce had taken place and deceased -
Santoba Agham gave two slaps to the Appellant. Deceased -
Santoba Agham and the Appellant entered in the house of
Appellant. The Appellant brought the knife from his house and
assaulted the deceased - Santoba Agham and when he
intervened, the Appellant assaulted him".
20. Further, the evidence of PW - 3 [Ranjana Baban
Khandare] show that they took deceased - Prakash Khandare
to Hospital at Sevli and from there, he was referred to
Government Hospital at Ner and thereafter, he was referred to
Government Hospital, Jalna, where he was declared dead. Her
statement was recorded before the learned Magistrate and
Police. Her statement before the learned Magistrate under
Section 164 of Cr.PC is brought on record at Exhibit - 28. She
identified the Appellant at the time of her evidence.
21. It is seen from her cross-examination that on the day of
incident though the Police visited her house and the spot of
incident, she did not meet the Police. She was with injured
husband - Prakash Khandare. However, the evidence of PW -
2 [Mangal Prakash Khandare] show that while recording her
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statement which was on the day of incident, PW - 3 [Ranjana
Baban Khandare] and her husband were present with her and
the Police had interrogated with them. The PW - 3 [Ranjana
Baban Khandare] admits in her cross-examination that on the
day of incident, the Police visited her house and the spot of
incident. If this is so, not disclosing about the incident by PW
- 3 [Ranjana Baban Khandare] to the Police at that point of
time creates doubt about her testimony that deceased -
Prakash Khandare gave oral dying declaration to her.
22. The cross-examination of PW - 3 [Ranjana Baban
Khandare] show that her evidence, she asked PW - 2 [Mangal
Prakash Khandare] as to what happened, PW - 2 [Mangal
Prakash Khandare narrated that the Appellant had beaten to
her husband, Santosh Agham and Prakash Khandare were seen
lying in the house of Appellant [omission is restricted to the
word 'house'], they brought Prakash Khandare to their house
on hand-cart [omission is restricted to word 'to their house'],
Santoba Agham and Appellant entered in the house, Prakash
Khandare went to convince them, were improvements /
omissions, which were proved from the evidence of PW - 16
[Prakash Shamrao Sapkale], who was the Investigating Officer.
23. The evidence of PW - 2 [Mangal Prakash Khandare] show
that she was the wife of deceased - Prakash Khandare and
they were residing together at Village Sevli. On 11.08.2015,
when her husband deceased - Prakash Khandare and deceased
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- Santoba Agham were sitting in her house, the Appellant
abused one Santosh Munjaji Agham. The Appellant and his wife
- Yamunabai were divorced, even then the Appellant used to
visit the house of Yamunabai. The said Santosh Agham
questioned the Appellant as to why he was doing so i.e.
visiting his divorced wife - Yamunbai. Her husband deceased -
Prakash Khandare and deceased - Santoba Agham went to the
house of Appellant to convince him. She also went to the
house of Appellant. Deceased - Santoba Agham was lying in
the house of Appellant in a pool of blood. Her husband was
coming from the county liquor shop and the Appellant stabbed
on the left chest of her husband i.e. Prakash Khandare. She got
frightened and came to her house and reported the incident to
her father and mother-in-law. PW - 3 [Ranjana Baban
Khandare] asked her as to what happened and she informed
PW - 3 [Ranjana Baban Khandare] that deceased - Santosh
Agham and her husband were lying in the pool of blood in the
house of Appellant.
24. The further evidence of PW - 2 [Mangal Prakash
Khandare] show that she, PW-3 [Ranjana Baban Khandare], her
mother-in-law went to the house of Appellant. PW - 3
[Ranjana Baban Khandare] brought the hand-cart. Deceased -
Prakash Khandare was brought to her house on the hand-cart
where his shirt was removed. As deceased - Prakash Khandare
was alive, she and PW - 3 [Ranjana Baban Khandare] asked
him as to what happened. Her husband deceased - Prakash
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Khandare clearly stated that the Appellant had beaten him.
Thereafter, deceased - Prakash Khandare was taken to
Government Hospital at Sevli and after the primary treatment,
he was shifted to Ner Hospital and from Ner Hospital, he was
shifted to the Civil Hospital, Jalna. She noticed the injuries on
the back side of the head of her husband, who was declared
dead at Government Hospital, Jalna. She identified the article
Nos.20 to 22 as the clothes of deceased - Prakash Khandare.
Her statement recorded before the learned Magistrate and
brought on record at Exhibit - 24.
25. The cross-examination of PW - 2 [Mangal Prakash
Khandare] show that her evidence that, her husband and
Santoba Agham were sitting in her house, the Appellant abused
Santoba Munjaji Agham, Santoba Agham was lying in the
house of Appellant in the pool of blood, her husband was
coming from country liquor shop, the Appellant stabbed on the
left chest of her husband, by seeing such incident she got
frightened, PW - 3 [Ranjana Baban Khandare] asked her as to
what happened and she narrated that deceased - Santoba
Agham and her husband were lying in the house of Appellant
in the pool of blood, PW - 3 brought the hand-cart and her
husband was alive, were the improvements / omissions, which
were proved from the evidence of PW - 16 [Prakash Shamrao
Sapkale] who was the Investigating Officer.
26. In her cross-examination, she admits that she told the
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Police in Sevli Hospital, Ner Hospital and Jalna Hospital that
her husband narrated her that the Appellant assaulted him.
However, in the evidence of PW - 16 [Prakash Shamrao
Sapkale], who was the Investigating Officer, he denies about
the same.
27. Though PW - 3 [Ranjana Baban Khandare] and PW - 2
[Mangal Prakash Khandare] deposed that the injured - Prakash
Khandare narrated about the assault by the Appellant i.e. dying
declaration after he was brought to their residence on the
hand-cart, the evidence of PW - 1 [Kaikaibai Santoba Agham]
show that when she saw injured - Prakash Khandare on the
hand-cart he was unconscious. Further, the evidence of PW -
10 [Dr. Mohammad Sharif Bismilahkhan] who was the Medical
Officer at Civil Hospital, Jalna and conducted postmortem of
deceased - Prakash Khandare show that due to the injuries on
the dead-body, his death was possible within five minutes. In
his cross-examination, it has further come that according to his
opinion, after receiving such injuries, the patient may go into
shock. Thus, the evidence in respect of oral dying declaration
to PW - 3 [Ranjana Baban Khandare] and PW - 2 [Mangal
Prakash Khandare] is required to be seen with doubt.
28. The versions of PW - 2 [Mangal Prakash Khandare] and
PW - 3 [Ranjana Baban Khandare in respect of oral dying
declarations by deceased - Prakash Khandare are further
required to be seen with doubt as there is no evidence about
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the fitness of injured - Prakash Khandare in making the oral
dying declaration. It has come in the cross-examination of PW
- 3 [Ranjana Baban Khandare] that one Doctor, who was
residing near her house, medically examined deceased -
Prakash Khandare and the said Doctor was Dr. Bangali.
Admittedly, the Prosecution has not examined the said Doctor
Bangali.
29. Further, there is variance in their evidence about the
dying declarations as according to PW - 2 [Mangal Prakash
Khandare], injured - Prakash Khandare stated of assault by
the Appellant only on him, whereas according to PW - 3
[Ranjana Baban Khandare], injured - Prakash Khandare gave
detailed account of the entire incident. When PW - 2 [Mangal
Prakash Khandare] and PW - 3 [Ranjana Baban Khandare]
were together at the time of bringing deceased - Prakash
Khandare on the hand-cart, there was no reason for glaring
inconsistency in respect of the oral dying declaration of
deceased - Prakash Khandare. This aspect also requires their
testimonies to be seen with doubt.
30. If we consider the evidence of PW - 2 [Mangal Prakash
Khandare] and PW - 3 [Ranjana Baban Khandare] who claims
to have visited the spot of incident together and brought the
deceased - Prakash Khandare on hand-cart, there is variance
on material aspect. According to PW - 2 [Mangal Prakash
Khandare], injured - Prakash Khandare was brought to her
18 CriAppeal-1094-2019.odt
house on the hand-cart, whereas PW - 3 [Ranjana Baban
Khandare] deposed that injured - Prakash Khandare was
brought on the hand-cart to their house. PW - 3 [Ranjana
Baban Khandare] admits in her cross-examination that her
house and the house of deceased - Prakash Khandare were
separate.
31. According to PW - 2 [Mangal Prakash Khandare] as seen
from her cross-examination, they reached the spot of incident
around 6:30 pm, whereas according to PW - 3 [Ranjana Baban
Khandare], deceased was taken to PHC Sevli between 6:00 pm
to 6:15 pm. There is glaring inconsistency in respect of timings
in the evidence of these two star witnesses of the Prosecution.
Thus, in the light of the above discussed evidence, the
testimonies of PW - 2 [Mangal Prakash Khandare] and PW - 3
[Ranjana Baban Khandare] in respect of dying declarations by
deceased - Prakash Khandare are discarded.
32. The evidence of PW - 1 [Kaikaibai Santoba Agham] show
that on 11.08.2015, deceased - Santoba Agham went to the
weekly market at Sevli in the morning at 10:00 am and she
went to the said weekly market at about 2:30 pm. She met
deceased - Santoba Agham in the front of shop of Laxman
More, who gave her Rs.500/- for purchasing. She went for
purchasing vegetables and after purchasing the vegetables, she
returned back to the shop of Laxman More. She did not found
her husband - Santoba Agham and she kept the vegetables in
the house of daughter of her brother i.e. PW - 2 [Mangal
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Prakash Khandare]. She went in search of her husband -
Santoba Agham. She noticed that deceased - Prakash
Khandare was brought on the hand-cart in bloody condition
and PW - 3 [Ranjana Baban Khandare] informed her that her
husband was lying in the house of Appellant. She rushed to the
house of Appellant and saw her husband deceased - Santoba
Agham lying in the pool of blood in the house of Appellant.
She then raised alarm till 7:00 pm. A vehicle came and her
husband was taken to Hospital. She deposed that her husband
died on the next day and she lodged the report with the Police
Station, which was Exhibit - 20. Thereafter, her statement
under Section 164 of Cr.PC came to be recorded. She identified
the articles Nos.17 to 19 as the clothes of her husband
deceased - Santoba Agham.
33. The evidence of PW - 1 [Kaikaibai Santoba Agham] show
that she is not the eye witness to the incident. Her further
evidence that the Appellant might have demanded money to
her husband for consuming liquor and since her husband
refused to give the money, the Appellant stabbed him on the
left side of his chest with the knife, due to which, her husband
became unconscious is hearsay in nature.
34. Her cross-examination show that her evidence that, she
kept the vegetables in the house of daughter of her brother,
PW - 3 [Ranjana Baban Khandare] informed her that her
husband was lying in the house of Appellant in bloody
condition, till 7:00 pm she was alone sitting there, the
20 CriAppeal-1094-2019.odt
Appellant stabbed on left side of chest of her husband with
knife, are the omission / improvements, which were proved
from the evidence of PW - 16 [Prakash Shamrao Sapkale] who
was the Investigating Officer.
35. Her cross-examination show that in her report, she had
stated that her husband was lying in tin shade behind the
country liquor shop. Therefore, her evidence that her husband
was lying in the house of Appellant is required to be seen with
doubt. The evidence of PW - 15 [Ramesh Pralhad Rathod]
show that he acted as spot panch. His evidence show that the
spot was situated behind the country liquor shop in village
Sevli. The spot panchnama is at Exhibit - 68, which show that
the spot of incident was 'Osari' of one house behind country
liquor shop. The evidence of PW - 16 [Prakash Shamrao
Sapkale], who was the Investigating Officer show that the
incident had taken place in the 'Osari' [front portion of the
house of Appellant]. Even, PW - 1 [Kaikaibai Santoba Agham]
in her cross-examination admits that the incident took place in
the 'Osari' [front side] of the house and not in the house.
From this, it becomes clear that, the incident had not taken
place within the fore corners of wall inside the house of
Appellant. There is nothing in the evidence to show that the
entry to the said 'Osari' was restricted or the said Osari was
enclosed. In such circumstances, the burden contemplated
under Section 106 of the Evidence Act, cannot be placed on
the Appellant.
21 CriAppeal-1094-2019.odt
36. The evidence of PW - 15 [Ramesh Pralhad Rathod] who
acted as panch further show that from the spot of incident, one
water pouch, Chiwda (Farsan) in plastic bag, one disposable
glass used fo consuming liquor, one purple colour plastic glass,
tow country liquor bottles, bank account pass-book of
Maharashtra Bank, mud, simple soil and blood mixed soil were
seized under the panchnama. This indicate that liquor
consumption was going on at the spot of incident. Further, PW
- 1 [Kaikaibai Santoba Agham] admits in the cross-examination
that at the time of incident, number of persons were
consuming the liquor in the liquor shop. One can imagine the
scenario at such a place and creates room for hypothesis about
involvement of third person in the incident.
37. The other evidence on record is that of discovery /
recovery of weapon i.e. spear (Bhala) at the instance of
Appellant from his house pursuant to the disclosure under
Section 27 of the Evidence Act vide memorandum and seizure
panchnamas at Exhibit 64 and 65, respectively. The evidence in
respect of discovery of weapon at the instance of Appellant is
liable to be discarded, in view of the evidence of PW - 1
[Kaikaibai Santoba Agham], wherein, she admits that at the
same time i.e. while lodging the FIR, the Police had shown her
weapon and told her that the Appellant assaulted her husband
with the said weapon [Article - 23] and they have seized it.
Even if the evidence in respect of discovery / recovery is
considered, the said discovery / recovery is after seven (07)
22 CriAppeal-1094-2019.odt
days from the arrest of Appellant which further renders it
doubtful.
38. The evidence of PW - 1 [Kaikaibai Santoba Agham]
further show that before lodging the FIR, the Appellant was
arrested by the Police. While lodging the FIR, she had seen the
Appellant in the Police Station. The evidence of PW - 16
[Prakash Shamrao Sapkale], who was the Investigating Officer,
show that the Appellant was found present near the Police
Station at Sevli and so he arrested him under the panchnama
at Exhibit - 74. This indicate that the Appellant was arrested
on Suspicion before lodging the FIR. This aspect show that
after arrest of the Appellant, the criminal law was set in
motion.
39. The next evidence is in the nature of CA reports in
respect of articles seized during the course of investigation. The
said CA reports are at Exhibits 87 to 90. It show that the
blood group of deceased - Santoba Agham was 'A', the blood
group of deceased - Prakash Khandare was inconclusive and
the blood group of Appellant was 'B'. The CA report at Exhibit
- 87 show that the clothes which were seized from the person
of Appellant i.e. articles 15, 16, 17 and 18 i.e. full short shirt,
full pant, nicker and spear blade were stained with human
blood and only article - 15 i.e. full shirt of Appellant was
having blood stain of group 'A'. The said CA reports in respect
of the articles will not be of any assistance to the Prosecution
23 CriAppeal-1094-2019.odt
as the evidence of PW - 16 [Prakash Shamrao Sapkale] -
Investigating Officer show that till 21.09.2015 the muddemal
was lying in the Police Station. The evidence of PW - 11 [Balu
Vitthal Shette], who was the Policeman show that API -
Sapkale handed over to him 21 and 3 sealed packets for
depositing with the chemical analysis at Aurangabad and he
deposited the same, accordingly. When the clothes of Appellant
and weapon were in the Police custody for a period more than
one (01) months and there being no evidence that they were
immediately sealed, the CA reports by themselves will not be
of any assistance to the Prosecution.
40. The other evidence is that of PW - 12 [Manoj Shrikishan
Jaiswal] who was running country liquor shop near the place
of incident, PW - 13 [Satish Sheshrao Lagame] who was
working on the said liquor shop, PW - 8 [Kailash Rasu
Khandare], in whose presence, the shirt of deceased - Prakash
Khandare came to be seized under the panchnama at Exhibit -
50. This evidence do not take the case of Prosecution any
further when the evidence of eye witness, the evidence of
witnesses before whom the oral dying declaration was made
and the evidence of discovery has been shattered.
41. On evaluation of evidence available on record as
discussed above, the Prosecution has failed to establish that it
was the Appellant who caused the injuries on deceased -
Satoba Agham and Prakash Khandare, which resulted in their
24 CriAppeal-1094-2019.odt
death. At the most Suspicion is created against the Appellant
for the reason that the dead bodies were found in the Osari of
the house of Appellant. However, that is not sufficient to
confirm the conviction. Resultantly, the impugned Judgment
and Order passed by the learned Trial Court needs to be
interfered with. Hence, we proceed to pass the following order:
ORDER
(i) Criminal Appeal is allowed.
(ii) The Judgment and Order dated 26.09.2019, passed by the
learned Additional Sessions Judge-3, Jalna, in Sessions Case
No.167/2015 convicting and sentencing the Appellant for the
offence punishable under Sections 302 of IPC, is quashed and
set aside.
(iii) The Appellant stands acquitted for the offence punishable
under Sections 302 of IPC.
(iv) The Appellant be released, if not required in any other
case.
(v) The fine amount, if deposited by the Appellant, be
refunded to him.
(vi) The Record and Proceedings be sent back to the learned
Trial Court.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
Sameer
