Bombay High Court
Sharad @ Dattu Namdeo Lagad vs The State Of Maharashtra on 12 September, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:21459-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 331 OF 2020
Sharad @ Dattu Namdeo Lagad
Age: 34 years, Occupation: Serving in Military
R/o: Hivra, Tq: Ashti, District: Beed ... Appellant
VERSUS
The State of Maharashtra ... Respondent
.....
Appearance :-
Mr. Joydeep Chatterji, Advocate for the Appellant
Mr. V. K. Kotecha, APP for the Respondent / State
.....
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 20/08/2024
Pronounced On : 12/09/2024
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. This Criminal Appeal under Section 374 [2] of the Code of
Criminal Procedure, 1973 [hereinafter referred to as 'Cr.PC'] is
directed against the Judgment and Order dated 03/03/2020,
passed by the learned Additional Sessions Judge, Beed, in
Sessions Case No.43/2018, convicting the Appellant for the
offences punishable under Sections 302 and 201 of the Indian
Penal Code, 1860 [hereinafter referred to as 'IPC'] and
sentencing to suffer Rigorous Imprisonment for life and fne of
Rs.10,000/-, in default, to suffer Rigorous Imprisonment for six
[6] months and to suffer Rigorous Imprisonment for seven [7]
years and fne of Rs.10,000/-, in default, to suffer Rigorous
Imprisonment for six [6] months, respectively.
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2. The Prosecution's case as revealed from the Police Report
is as under :-
[I] Deceased - Lahanabai @ Gitanjali [hereinafter referred to
as 'Deceased - Gitanjali] was the daughter of Informant / PW - 1
[Sampat Vitthal Nimse]. She was married in the year 2007 to
the Appellant. She was treated well at her matrimonial house
for a period of one [1] year. Out of their wedlock, she gave birth
to daughter - Shalan. As daughter was born, the Appellant
started harassing Deceased - Gitanjali. From time to time, the
Informant and his relatives gave understanding to the
Appellant. The Appellant was in the services of Armed Forces.
The Appellant used to suspect the chastity of Deceased -
Gitanjali and used to beat her by consuming liquor. Ten [10]
days prior to the incident, the Appellant beat Deceased -
Gitanjali, which resulted in injury to her upper-arm.
[II] On 29/12/2017, at about 22.30 hours, the Appellant came
to the house of Informant / PW - 1 along with his one of the
friends and enquired about Deceased - Gitanjali. When the
Informant / PW - 1 told him that, Deceased - Gitanjali did not
come to his place, the Appellant told him that there was quarrel
between him and Deceased - Gitanjali on the point of working in
the agricultural feld and he hit her with a small stone and she
went somewhere. Thereafter, the Appellant left. Informant /
PW - 1 got suspicious, therefore on 30/12/2017, at about 9.00
am, he went to the matrimonial house of Deceased - Gitanjali
with his sons and relatives. After reaching village Hivra, they
came to know that, Deceased - Gitanjali was lying in half burnt
condition at the bund of agricultural feld and accordingly, they
reached the said spot where they saw Deceased - Gitanjali in
dead condition. Her ornaments, chappels and two [2] empty
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bottles of liquor were found near the body. The Informant / PW
- 1 lodged the report with the Police that the Appellant killed
his daughter and Crime No.316/2017 came to be registered with
the Ambhora Police Station.
[III] The Spot Panchnama, Inquest were done. The body was
referred for Postmortem. The Appellant came to be arrested.
The statements of witnesses were recorded. One stone and
memory card came to be seized at the instance of the Appellant
pursuant to his voluntary statement. Seized articles came to be
sent for Chemical Analysis. The cause of death was revealed as
'due to burns'. The Postmortem Report and the Reports of
Chemical Analyser came to be collected. After completion of
investigation, the Appellant came to be Charge-sheeted.
3. On committal, the learned Sessions Court framed the
Charge against the Appellant for the offence punishable under
Sections 302 and 201 of IPC vide Exhibit - 6. The Appellant
denied the Charge and claimed to be tried. To prove the Charge,
the Prosecution examined in all eleven [11] witnesses and
brought on record the relevant documentary evidence. On
completion of Prosecution evidence, the learned Trial Court
recorded the statement of Appellant under Section 313[1][b] of
Cr.PC. The Appellant denied the case and evidence of the
Prosecution. After hearing both the sides and appreciating the
evidence on record, the learned Trial Court passed the
impugned Judgment and Order.
4. It is submitted by the learned Advocate for the Appellant
that the case is based on circumstantial evidence. The Medical
Offcer could not show whether the death of Deceased - Gitanjali
was Homicidal, Suicidal or Accidental. There is no evidence to
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show that the Appellant was in the company of Deceased -
Gitanjali soon before her death. The evidence on record do not
prove the chain of circumstances pointing unerringly towards
the involvement of the Appellant in the Crime. Some of the
witnesses did not support the case of Prosecution. As the
evidence on record do not establish the Charge, the Appeal be
allowed and the impugned Judgment and Order be quashed and
set aside.
5. It is submitted by the learned APP that the Spot
Panchnama has been admitted by the defence. The burnt
plastic was found on the handle of axe, which was used in the
Homicidal Death of Deceased - Gitanjali. The evidence on
record rules out the possibility of Suicidal Death. The Spot
Panchnama explains the incident. The Postmortem Report
show that it was conducted on the spot. There is evidence in
the nature of extra- judicial confession made to the Informant /
PW - 1. The stone used in the assault was seized at the instance
of the Appellant. All the circumstances, which are brought on
record, unerringly show that the Appellant was the perpetrator
of Crime and the learned Trial Court has rightly passed the
impugned Judgment and Order. Hence, the Appeal be
dismissed.
6. Undisputedly, the Prosecutions case is based on
circumstantial evidence. The law in respect of circumstantial
evidence is well settled from the Judgment in Sharad
Birdhichand Sarda Vs. State of Maharashtra; [1984] 4 SCC 116,
wherein, following principles are laid down :-
(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
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(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty.
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except the one
to be proved, and
(5) There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused."
7. There is no dispute on the following aspects :-
[i] Deceased - Gitanjali was the wife of Appellant ;
[ii] The criminal law was set in motion by the father of
Deceased - Gitanjali ;
[iii] The spot where dead body was found i.e. spot of incident,
was bund / boundary of the agricultural feld of the
Appellant ;
[iv] The body was found in a burnt condition ;
8. To prove the Homicidal Death of Gitanjali, the relevant
evidence is that of PW - 7 [Dr. Vitthal Santram Karad], who was
posted as the Medical Offcer at Primary Health Center Sulemna
Deole from 2013 to May - 2018. On 30/12/2017, he received the
communication at Exhibit - 46 for conducting autopsy on the
dead body of Gitanjali. On Postmortem, he observed the
following :-
"[i] Totally burned body. Thorax, neck, abdomen, charred body.
[ii] No major injury found on thorax, abdomen other than burns.
[iii] As the skin burnt of skull seen externally.
[iv] Crack noted over right parietal region, crack noted over
occipital region on left side. Obliquely."
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Internal examination :-
1] Head :-
i] Injuries under the skull, their 1] crack noted over right
nature :- parietal region, running
anterior, posteriorly.
2] Crack noted over
occipital region on left side
running obliquely.
2] Thorax :-
a] Wallas, ribs, cartilages : Intact, rim cartilages walls
deep burns.
b] Pleura No pleura fluid noted.
c] Laryanx, Trachea and Bronchi: Charred partially noted in
bronchi.
d] Left lung & right lung : Both lungs found blackish
coloured.
Heart : Normal size
Large vessels :- Blood clotted
Pericardium :- Blackish coloured. g
Abdomen :
1] Walls, peritoneum and cavity : Right side complete
2] Bucal cavity, teeth, tongue and Tongue deep burn.
pharynx
3] Stomach and its contents :- Semi-solid food material
present in stomach
4] Stomach and its contents:- No foecal material found.
5] Small intestine and its contents :- Right burned, left robe
brownish.
6] Pancreas Spleen, kidneys, bladder Bluish coloured normal
and organ of generations :- size. Urine present in
bladder. Uterus present
normal size and shape.
Additional Remark: Death occurred within 1 ½
hour after last meal.
Sample of Viscera was
taken ans sent for chemical
analysis.
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9. PW - 7 [Dr. Vitthal Santram Karad] opined that it cannot
be said that the surface wounds and injuries were either
antemortem or postmortem and no time reaction was noted as
the body was totally charred. He opined that the probable
cause of death as due to 'burns'. The fnal cause of death was
reserved and vicera was preserved. He could not defnitely say
whether the burn injuries were Suicidal, Accidental or
Homicidal. The postmortem report is brought on record in his
evidence at Exhibit - 46. From this evidence, the Prosecution
could not conclusively prove that Gitanjali died Homicidal
Death. Though PW - 7 [Dr. Vitthal Santram Karad] gave the
cause of death due to burns, he was not sure whether death was
Homicidal or otherwise.
10. The evidence of PW - 1 [Sampat Vitthal Nimse], who was
the Informant and father of Deceased - Gitanjali, show that on
29/12/2017, the Appellant along with one of his friends had
come to his residence and enquired about Deceased - Gitanjali.
When he told the Appellant that Deceased - Gitanjali did not
come to his home, the Appellant and his friend left. Before
leaving, when he inquired with the Appellant about Deceased -
Gitanjali, the Appellant gave extra-judicial confession that he
beat Deceased - Gitanjali with a small stone and hence, she left
home and therefore, he had come in her search.
11. His further evidence show that on the next day at 9:00
am, he along with his family members and relatives went to the
village of Appellant i.e. Hivra, where he learnt that dead body of
one lady was lying in the feld. Accordingly, he reached the
spot, where he noticed that, the dead body was that of his
daughter [Deceased - Gitanjali]. His further evidence show
that the Appellant was working in the Armed Forces i.e.
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Military and he was posted at various places. After Deceased -
Gitanjali gave birth to a girl child from the Appellant, Deceased
- Gitanjali along with daughter started residing at Hivra
Pipalkhed for education of her daughter. The Appellant was
residing alone i.e. place of posting and used to occasionally
come at his village on leave. Though he denied that his son -
Ambadas Sampat Nimse was present with him at the time of
lodging the report at Exhibit - 20, at the Police Station, in the
evidence of PW - 9 [Sudam Dharmraj Sirsath], who was the
Police Sub-Inspector posted at Ambhora Police Station on
30/12/2017, he deposed that, one Ambadas Sampat Nimse was
also present with the Informant and he also signed on the
report. Undisputedly, the report bears the signature of
Ambadas Sampat Nimse. In his cross-examination, he deposed
that he knew the relatives of the Appellant, who were residing
in the house of Appellant. Further cross-examination show that
he lodged the report against the Appellant on doubt.
12. The evidence of PW - 1 [Sampat Vitthal Nimse] in respect
of ill-treatment to his daughter [Deceased - Gitanjali] at the
hands of Appellant on account of her character, is hearsay in
nature. What is seen from the evidence of this witness is that
after noticing the burnt dead body of his daughter [Deceased -
Gitanjali], he lodged the report against the Appellant on
suspicion. It is needless to state that suspicion however strong,
cannot take the place of proof. The extra-judicial confession is
not in respect of the death of Deceased - Gitanjali. It is only in
respect of hitting Deceased - Gitanjali with stone. The extra-
judicial confession, is a weak piece of evidence and solely cannot
form the basis to hold that it was the Appellant who caused the
death of his wife [Deceased - Gitanjali]. Through the evidence of
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PW - 1 [Sampat Vitthal Nimse], it is only established that the
criminal law was set in motion against the Appellant.
13. The other evidence is in the nature of discovery and
seizure at the instance of the Appellant. The evidence of PW - 4
[Bapu Pandurang Gavane] show that on 02/01/2018, he was
working as the Talathi at Ambhora. On that day, he was called
by the Police at Ambhora Police Station to act as the panch.
When he reached the Police Station, the Appellant was brought
before the panchas. The Appellant made statement to show the
place and stone [excluding inadmissible part]. The
memorandum to that effect was prepared at Exhibit - 33.
Thereafter, accused led them to one place in agricultural feld
where they saw the ash of cotton sticks, burn trees, one small
and one big stone. The said articles were seized under the
seizure panchnama at Exhibit - 33-A.
14. The evidence of PW - 10 [Mirza Wahab Mansab Baig], who
was the Police Inspector at Ambhora Police Station at the
relevant time, show that he arrested the Appellant on
30/12/2017. He deposed that, on 02/01/2018, the Appellant
agreed to show the place and stone and Memorandum at
Exhibit - 33 was prepared in that regard [excluding
inadmissible part]. The Appellant, thereafter, led the Police and
panchas to the spot, where he pointed the stone, which came to
be seized under the seizure panchnama.
15. The above evidence in respect of discovery under Section
27 of the Indian Evidence Act, 1872 [hereinafter referred to as
'the Evidence Act] brought on record in the evidence of PW - 4
[Bapu Pandurang Gavane] and PW - 10 [Mirza Wahab Mansab
Baig] do not stand the scrutiny of law laid down by the Hon'ble
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Supreme Court of India in Babu Sahebagouda Rudragoudar Vs.
State of Karnataka; AIR 2024 SC 2252, wherein, it is observed
as follows :
"when the Investigating Officer steps into the witness box for
proving such disclosure statement, he would be required to narrate
what the Accused stated to him. The Investigating Officer essentially
testifies about the conversation held between himself and the
Accused which has been taken down into writing leading to the
discovery of incriminating fact(s). It is further observed that,
'Similar view was taken by the Hon'ble Apex Court in the case of
Ramanand @ Nandlal Bharti Vs. State of Pradesh, wherein this
Court held that mere exhibiting of Memorandum prepared by the
Investigating Officer during investigation cannot tantamount to
proof of its contents. While testifying on oath, the Investigating
Officer would be required to narrate the sequence of events which
transpired leading to the recording of the disclosure statement."
16. The evidence of PW - 10 [Mirza Wahab Mansab Baig] is
completely silent as to what disclosure statement the Appellant
made before him in presence of panchas. His evidence show
that the Appellant agreed to show the place and stone.
However, his evidence nowhere show as to what the Appellant
voluntarily stated.
17. Further, PW - 10 [Mirza Wahab Mansab Baig] admits that
the place mentioned in the Spot Panchnama, which was at
Exhibit -37 and the place mentioned in the Memorandum of
statement at Exhibit -33 was one and the same. He admits that
he had gone to the said spot on 30/12/2017 i.e. before the
evidence in respect of disclosure and seizure. Thus, there was
no discovery of spot at the instance of the Appellant as the spot
was already in the knowledge of Police. Further, there is no
evidence to connect the stones seized from the spot with the
death of Deceased - Gitanjali. PW - 4 [Bapu Pandurang
Gavane] and PW - 10 [Mirza Wahab Mansab Baig] nowhere in
their evidence deposed that the stones which were seized from
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the spot were having blood stains. There is no reference of
stone in the CA reports at Exhibits - 50 to 52. Thus, evidence of
discovery and seizure at the instance of the Appellant will not
be relevant and of no assistance to the Prosecution.
18. PW - 2 [Nana Dada Lagad], who was having his
agricultural feld near the feld of the Appellant, PW - 3
[Murlidhar Anandrao Lagad], who was the resident of village
Hivra and PW - 5 [Ganesh Dilip Ghodeswar], who was the
resident of village Hivra did not support the case of
Prosecution. Though they were cross-examined by the learned
APP, nothing surfaced in their evidence to further the case of
Prosecution or establish the Charge.
19. The evidence of PW - 6 [Santosh Chhaganrao Sonwane]
show that he was the Police Constable attached to Ambhora
Police Station at the relevant time and he deposited the
muddemal articles to the Forensic Science Laboratory,
Aurangabad for examination. PW - 8 [Yeshwant Vitthal
Baravkar] was the Police Offcer, who forwarded the muddemal
articles for Chemical Analysis and submitted the Charge-sheet
against the Appellant. PW - 9 [Sudam Dharmraj Sirsath] was
the Police Offcer, who scribed the report of PW - 1 [Sampat
Vitthal Nimse]. PW - 10 [Mirza Wahab Mansab Baig] and PW -
11 [Ashok Dhondiba Pawar] were the Police Offcers, who
investigated the Crime.
20. Scrutiny of the evidence available on record, as discussed
above, show that the circumstances do not unerringly point
towards the Appellant. Firstly, the Prosecution failed to prove
that Gitanjali died Homicidal Death. Secondly, there is absence
of evidence to prove the motive. Thirdly, the conduct of the
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Appellant to reach the house of PW - 1 [Sampat Vitthal Nimse],
who was the resident of different village, to enquire about his
wife - Gitanjali, is consistent with his innocence. Fourthly,
extra-judicial confession to PW - 1 that he hit Gitanjali with
stone is a weak piece of evidence. On re-appreciation of the
evidence available on record, we are of the considered view
that, the conviction of the Appellant recorded by the learned
Trial Court is unsustainable and the same requires interference.
The Appeal therefore, deserves to be allowed. Hence, the
following order:
ORDER
[a] Criminal Appeal is allowed.
[b] The Judgment and Order dated 03/03/2020 passed by the
learned Additional Sessions Judge, Beed, in Sessions Case
No.43/2018, convicting the Appellant for the offences
punishable under Sections 302 and 201 of IPC and
sentencing him to suffer Rigorous Imprisonment for life
and fne of Rs.10,000/-, in default, to suffer Rigorous
Imprisonment for six [6] months and to suffer Rigorous
Imprisonment for seven [7] years and fne of Rs.10,000/-,
in default, to suffer Rigorous Imprisonment for six [6]
months, is quashed and set aside.
[c] The Appellant stands acquitted for the offence punishable
under Sections 302 and 201 of IPC.
[d] The fne amount, if deposited by the Appellant, be
refunded to him.
[e] The Appellant be released, if not required in any other
case.
[f] The Record and Proceedings be sent back to the learned
Trial Court.
21. Criminal Appeal is disposed of accordingly.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Signed by: Md. Sameer Q. Sameer
Designation: PA To Honourable Judge
Date: 12/09/2024 17:53:58
