Criminal Appeal No. 1094 of 2019 · Bombaybench High Court
Case Details
2024:BHC-AUG:4383-DB 1CriAppeal-1094-2019.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 1094 OF 2019Santosh S/o Baburao KhandareAge: 41 years, Occu: Labour,R/o: Petkar Nagar, Sevli,Taluka and District Jalna… AppellantVersusThe State of MaharashtraThrough the Police Station Officer,Sevli Police Station, Taluka and District Jalna… Respondent...Mr. Satyajit S. Bora, Advocate for the AppellantMr. S. D. Ghayal, APP for the Respondent - State…CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved on : 7th February, 2024Pronounced on : 1st March, 2024JUDGMENT : [PER NEERAJ P. DHOTE, J.] 1.This is an Appeal under Section 374 (2) of the Code ofCriminal Procedure, 1973 [for short ‘Cr.PC’] against theJudgment and Order dated 26.09.2019, passed by the learnedAdditional Sessions Judge-3, Jalna, in Sessions CaseNo.167/2015 convicting the Appellant for the offencepunishable under Section 302 of the Indian Penal Code, 1860[for short ‘IPC’] and sentencing him to suffer rigorousimprisonment for life and to pay fine of Rs.10,000/-, indefault, to suffer R.I. for six months. 2CriAppeal-1094-2019.odt2. Prosecution’s case as revealed from the Police Report is asunder:2.1 The Informant – PW - 1 [Kaikaibai Santoba Agham] is aresident of Bhagdesawargaon in Jalna District. She and herdeceased husband - Santoba Agham were engaged in the workof preparing wooden equipments used for the bullock-carts.There was weekly market [Bazar] at Village Sevli on11.08.2015. He left the residence in the morning to go to thesaid weekly market to sell the said equipments. She was askedto 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 thattheir son – Dharma had called from Mumbai that he wassending Rs.20,000/- on his bank account and so he was goingto bank for withdrawing the money. He asked her to purchasethe vegetables in the meanwhile. The Informant did herpurchasing and then reached near the shop of Laxman More.There she did not find her husband. She started searching forhim. She saw that their relative deceased - Prakash Khandarewas being brought on the hand-cart by Rasu Khandare, cousinbrother - Baban Khandare and others. She noticed thatdeceased - Prakash Khandare was soaked in blood andunconscious. At that time, Baban Khandare informed her thather husband was lying behind the liquor shop. She rushed inthat direction and saw that her husband was lying in the tinshade. She noticed the injuries and blood oozing from the body 3CriAppeal-1094-2019.odtof her husband and he was unconscious. She raised shouts.Thereafter, the people gathered and took her husband to theHospital.2.2The Informant learnt that when her husband and theirrelative deceased - Prakash Khandare were passing from thebackside of country liquor shop, Santosh Baburao Khandare i.e.the Appellant, met them and demanded money from herhusband. When her husband refused to give money, quarreltook place between her husband and the Appellant. TheAppellant removed sharp weapon and inflicted blows on thechest, ribs and hands of her husband. When deceased PrakashKhandare intervened in the said quarrel, the Appellant alsoassaulted him with the said sharp weapon. The Informantlodged the Report with the Sevli Police Station against theAppellant and Crime No.334/2015 came to be registered in thenight of 11.08.2015.2.3The Police went to the Hospital. Both injured personssuccumbed to the injuries. The Police prepared the inquest andsent the dead bodies for postmortem. The Police prepared thespot panchnama, seized the clothes of deceased and theAppellant, arrested the Appellant, recorded the statement ofwitnesses, seized the weapon at the instance of Appellantpursuant to discovery under Section 27 of the Indian EvidenceAct, 1872 [for short ‘the Act’], sent seized muddemal forchemical analysis and collected CA reports and on completionof investigation, the Appellant came to be Charge-sheeted.
Legal Reasoning
4CriAppeal-1094-2019.odt3.The learned Trial Court framed the Charge against theAppellant for the offence punishable under Section 302 of IPCvide Exhibit–2, to which, the Appellant pleaded not guilty andclaimed to be tried. To prove the Charge, the Prosecutionexamined in all sixteen (16) witnesses and brought on recordthe relevant documents. After Prosecution closed it’s evidence,the statement of the Appellant came to be recorded underSection 313(1)(b) of Cr.PC. He denied the Prosecution’s caseand evidence. Thereafter, the learned Trial Court passed theimpugned Judgment convicting the Appellant for the offence asreferred above in Paragraph No.1.4.Heard Mr. S. S. Bora, learned Advocate for the Appellantand Mr. S. D. Ghayal, learned Additional P.P. for theRespondent – State. Perused the evidence on record.5.It is submitted by the learned Advocate for the Appellantthat though the Prosecution claims to have examined the eyewitness to the incident, his evidence do not inspire confidencethat he witnessed the incident. He further submitted that theversion of witnesses that the oral dying declaration was madeby deceased – Prakash Khandare gets falsified in view of theevidence that he was unconscious. He further submitted thatthe discovery of weapon at the instance of Appellant is a farce.He submitted that the other corroborative evidence on recorddo not support the case of Prosecution, therefore, the Appealbe allowed and the Appellant be acquitted. 5CriAppeal-1094-2019.odt6.It is submitted by the learned Additional P.P. that theevidence of PW – 6 [Prakash Rambhau Ambhore], who is aneye witness to the incident, is required to be considered in itscorrect perspective. The Investigating Officer explained thedelay in recording his statement. He submitted that from thepostmortem reports, the cause of death due to severe injurieson both the deceased has been proved. He submitted that theoral dying declaration was made by deceased - PrakashKhandare to PW - 2 [Mangal Prakash Khandare] and PW – 3[Ranjana Baban Khandare] and that corroborates the evidenceof PW – 6 [Prakash Rambhau Ambhore]. He submitted that theclinching evidence is that of blood of deceased – SantobaAgham on the clothes of Appellant. He submitted that theweapon used in the assault has been seized at the instance ofthe Appellant. He submitted that on the basis of provedevidence, no interference is called for in the impugnedJudgment and Order and the Appeal be dismissed.7. To prove the injuries and the cause of death of both thedeceased, the Prosecution examined PW - 4 [Gajanan TatebaPalve] and PW – 5 [Vishnu Laxman Chole], who acted as thePanchas for inquest [Exhibit – 34] of deceased – SantobaAgham and PW – 7 [Dnyandeo Deorao Ghode] who acted asthe Panch for inquest [Exhibit – 44] of deceased – PrakashKhandare. Their evidence show injuries on the dead bodies.The respective Panchanamas corroborate their evidence. Thereis no serious challenge to their evidence on that aspect by the 6CriAppeal-1094-2019.odtdefence. The evidence of PW - 9 [Dr. Vikas Maroti Gatkal],Medical Officer and PW - 10 [Dr. Mohammad SharifBismilahkhan Pathan] is in respect of cause of death of SantobaAgham and Prakash Khandare, respectively.8.The evidence of PW – 9 [Dr. Vikas Maroti Gatkal] showthat he performed the postmortem on the body of deceased -Santoba Agham on 12.08.2015 and he found the cause of deathas ‘hemorrhagic shock caused by punctured incised wound tovital organ heart and left lung’. The postmortem report atExhibit – 52 is brought in his evidence. His evidence show thefollowing injuries on his body: “Nature – nature of following described punctured – incisedwound is dangerous - Position, dimensions and direction –single punctured - incised wound elliptical in shape. It is locatedin the left thorns lateral and below to the nipple, 45 cms forthe top of head, and obliquely oriented with upper corner 12cms, lower corner 4 cms away from midline to the left. It is 4cms long and 1 cm wide at the skin surface, there is noabrasion or bruising at wound margin. Edge are some swollenand red. Track is 12.5 cms deep directed from left to right,front to back and angulate slightly downward. The trackperforates 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 ofdimensions 2x1x1 cm. The entire wound track is infiltrated withblood and 1200 ml of liquid and clotted blood is found in theleft chest cavity clots are rubbery and firm. There is no exitwound.”9.The evidence of PW – 10 [Dr. Mohammad SharifBismilahkhan Pathan] show that he performed the postmortemon the body of deceased - Prakash Khandare on 12.08.2015and he found the cause of death as “Death due to cardiorespiratory arrest, due to hemorrhagic shock, due to massive 7CriAppeal-1094-2019.odthemothorax with heart and lungs injuries, due to stab injuryover chest wall”. The postmortem report at Exhibit – 55 isbrought on record in his evidence. His evidence show thefollowing injuries:“1. Stab wound: over anterior chest Wall, size of injury was3x6 cm, edges of injury were sharp, with bleeding from thatparticular site. Injury was communicating left thoracic cavity.2. Two stab injury over right chest wall. Posteriorly at 7thintercostal space. Size of first injury over right chest wall was3x4 cm and size of second stab injury over right chest was 3x3cm. Both these stab injuries were communicating to rightthoracic cavity.”10.From the above discussed medical evidence, it is seenthat 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 isseen that the said injuries and the cause of death are notseriously challenged. Thus, there is no difficulty in holding thatthe Prosecution has proved that deceased - Santoba Agham anddeceased - Prakash Khandare died Homicidal deaths.11.In establishing the Charge against the Appellant, theProsecution’s case primarily rests upon the testimonies of PW –6 [Prakash Rambhau Ambhore], who is examined as eyewitness to the incident, PW – 3 [Ranjana Baban Khandare] andPW – 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 ofdeceased – Santoba Agham. 8CriAppeal-1094-2019.odt12.PW - 6 [Prakash Rambhau Ambhore] belong to theVillage of deceased - Santoba Agham. His evidence show thaton 11.08.2015, there was weekly market day at Village Sevliand he had gone for purchasing in the said market. Deceased –Santoba Agham had also come to the weekly market for sellingagricultural equipments. They met each other between 1:00 pmto 1:30 pm. While he was returning at about 4:00 pm, henoticed PW - 1 [Kaikaibai Santoba Agham] in the bullock-cartand he asked her whether she wants to return to the Village.PW - 1 [Kaikaibai Santoba Agham] asked him whether he hadseen her husband. Therefore, he went in search of herhusband. When he reached near the house of Appellant, whichwas near the country liquor shop, he heard that quarrel wasgoing on in the house of Appellant and so he went near thehouse of Appellant and heard loud talking between theAppellant and both the deceased i.e. Santoba Agham anddeceased - Prakash Khandare. He entered the house ofAppellant. The Appellant went in the Chappar [front side roomused for cooking] of the house and brought a knife. TheAppellant stabbed in the stomach of deceased - Santoba Aghamwith the said knife and when deceased - Prakash Khandarewent to intervene, the Appellant stabbed him on the neck,waist and chest with the said knife. Thereafter, the Appellantthrew the knife and fled away towards weekly market.13.PW – 6 [Prakash Rambhau Ambhore] got frightened andnarrated the said incident to PW – 1 [Kaikaibai Santoba 9CriAppeal-1094-2019.odtAgham], who is also his maternal aunt. His maternal aunt andtwo other women rushed towards the spot of incident. Theinjured – Prakash Khandare was semi conscious and was takento Hospital on the hand-cart and deceased - Santoba Aghamwas lying in the house of Appellant. As the injured – PrakashKhandare and Santoba Agham questioned the Appellant as towhy he was behind Yamunabai [divorced wife of theAppellant], the Appellant committed the said crime. He knewthe Appellant and identified him at the time of his evidence.14.The cross-examination of PW – 6 [Prakash RambhauAmbhore] show that, his evidence that, he entered the houseof Appellant, the Appellant went in the Chappar of house andbrought the knife, the Appellant stabbed on the right side ofdeceased - 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 houseand ran away were the improvements/omissions, which wereproved from the evidence of PW – 16 [Prakash ShamraoSapkale], who was the Investigating Officer.15.Though PW – 6 [Prakash Rambhau Ambhore] claims tobe the eye witness to the incident and attended funeral ofdeceased – Santoba Agham on the next day, he did not informanybody that he witnessed the incident. Though, Police visitedhis house on the next day of funeral of deceased – SantobaAgham and he met the Police, he did not narrate the incident 10CriAppeal-1094-2019.odtto the Police. Admittedly, his statement is recorded on19.08.2015, which is after eight (08) days from the incident.Though deceased - Santoba Agham and he were related, hemaintained silence about his witnessing the incident for eight(08) days. This is really strange.16.The cross-examination of PW – 16 [Prakash ShamraoSapkale], who investigated the crime, show that till 19.08.2015no witness informed him about the presence of PW – 6[Prakash Rambhau Ambhore] on the spot of incident. It hascome in his evidence that on the next day of incident, hevisited the village of PW – 6 [Prakash Rambhau Ambhore] andon that day, he did not inform him about the incident. Theevidence further show that he inquired with PW - 6 [PrakashRambhau Ambhore] about the delay of eight (08) days forgiving statement and he told that as he was a poor person andpatient of blood pressure, the delay was caused. His evidenceshow that PW – 6 [Prakash Rambhau Ambhore] on his ownappeared before him for giving statement. The explanation put-forth by the Prosecution’s witness for delay in giving statementis unacceptable. 17.Further, PW – 1 [Kaikaibai Santoba Agham] nowheredeposed that PW – 6 [Prakash Rambhau Ambhore] met her inthe weekly market and conversation took place between themas deposed by PW – 6 [Prakash Rambhau Ambhore]. Thus, inthe backdrop of the above discussed evidence available onrecord, the evidence of PW - 6 [Prakash Rambhau Ambhore] 11CriAppeal-1094-2019.odtthat he witnessed the actual incident, is required to be seenwith doubt.18.The evidence of PW – 3 [Ranjana Baban Khandare] showthat deceased – Santoba Agham was her maternal uncle anddeceased - Prakash Khandare was cousin brother of herhusband. The Appellant was also in their relation. TheAppellant married one Yamunabai, however, there was divorcebetween the Appellant and Yamunabai. Even then, theAppellant used to go and meet his divorced wife – Yamunabai.On 11.08.2015 in between 4:45 pm to 5:00 pm, when she wasin the house, she heard weeping of PW – 2 [Mangal PrakashKhandare]. So she herself and her husband went to the houseof PW – 2 [Mangal Prakash Khandare] and inquired as towhat happened. The PW – 2 [Mangal Prakash Khandare]informed her that the Appellant had beaten her husband. Theyall rushed towards the house of Appellant. Both the deceasedi.e. Santoba Agham and Prakash Khandare were seen lying inthe house of Appellant in a pool of blood. Her husband wenttowards the market and brought the hand-cart and took injured– Prakash Khandare on the hand-cart. On the way, they metPW - 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 BabanKhandare] show that, they brought injured – Prakash 12CriAppeal-1094-2019.odtKhandare to their house on the hand-cart. They noticed injurieson the chest of injured – Prakash Khandare and inquired withhim about the same. “Injured–Prakash Khandare narrated thathe and deceased – Santoba Agham had been to the house ofAppellant to convince him as to why he was wandering behindYamunabai 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 ofAppellant. The Appellant brought the knife from his house andassaulted the deceased – Santoba Agham and when heintervened, the Appellant assaulted him”.20.Further, the evidence of PW – 3 [Ranjana BabanKhandare] show that they took deceased - Prakash Khandareto Hospital at Sevli and from there, he was referred toGovernment Hospital at Ner and thereafter, he was referred toGovernment Hospital, Jalna, where he was declared dead. Herstatement was recorded before the learned Magistrate andPolice. Her statement before the learned Magistrate underSection 164 of Cr.PC is brought on record at Exhibit – 28. Sheidentified the Appellant at the time of her evidence.21.It is seen from her cross-examination that on the day ofincident though the Police visited her house and the spot ofincident, she did not meet the Police. She was with injuredhusband – Prakash Khandare. However, the evidence of PW –2 [Mangal Prakash Khandare] show that while recording her 13CriAppeal-1094-2019.odtstatement which was on the day of incident, PW - 3 [RanjanaBaban Khandare] and her husband were present with her andthe Police had interrogated with them. The PW - 3 [RanjanaBaban Khandare] admits in her cross-examination that on theday of incident, the Police visited her house and the spot ofincident. If this is so, not disclosing about the incident by PW- 3 [Ranjana Baban Khandare] to the Police at that point oftime creates doubt about her testimony that deceased –Prakash Khandare gave oral dying declaration to her.22.The cross-examination of PW – 3 [Ranjana BabanKhandare] show that her evidence, she asked PW – 2 [MangalPrakash Khandare] as to what happened, PW – 2 [MangalPrakash Khandare narrated that the Appellant had beaten toher husband, Santosh Agham and Prakash Khandare were seenlying in the house of Appellant [omission is restricted to theword ‘house’], they brought Prakash Khandare to their houseon hand-cart [omission is restricted to word ‘to their house’],Santoba Agham and Appellant entered in the house, PrakashKhandare 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] showthat she was the wife of deceased – Prakash Khandare andthey were residing together at Village Sevli. On 11.08.2015,when her husband deceased – Prakash Khandare and deceased 14CriAppeal-1094-2019.odt– Santoba Agham were sitting in her house, the Appellantabused one Santosh Munjaji Agham. The Appellant and his wife– Yamunabai were divorced, even then the Appellant used tovisit the house of Yamunabai. The said Santosh Aghamquestioned 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 thehouse of Appellant to convince him. She also went to thehouse of Appellant. Deceased – Santoba Agham was lying inthe house of Appellant in a pool of blood. Her husband wascoming from the county liquor shop and the Appellant stabbedon the left chest of her husband i.e. Prakash Khandare. She gotfrightened and came to her house and reported the incident toher father and mother-in-law. PW – 3 [Ranjana BabanKhandare] asked her as to what happened and she informedPW – 3 [Ranjana Baban Khandare] that deceased – SantoshAgham and her husband were lying in the pool of blood in thehouse of Appellant.24.The further evidence of PW – 2 [Mangal PrakashKhandare] show that she, PW–3 [Ranjana Baban Khandare], hermother-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-cartwhere his shirt was removed. As deceased – Prakash Khandarewas alive, she and PW – 3 [Ranjana Baban Khandare] askedhim as to what happened. Her husband deceased – Prakash 15CriAppeal-1094-2019.odtKhandare clearly stated that the Appellant had beaten him.Thereafter, deceased – Prakash Khandare was taken toGovernment Hospital at Sevli and after the primary treatment,he was shifted to Ner Hospital and from Ner Hospital, he wasshifted to the Civil Hospital, Jalna. She noticed the injuries onthe back side of the head of her husband, who was declareddead at Government Hospital, Jalna. She identified the articleNos.20 to 22 as the clothes of deceased – Prakash Khandare.Her statement recorded before the learned Magistrate andbrought on record at Exhibit – 24.25. The cross-examination of PW – 2 [Mangal PrakashKhandare] show that her evidence that, her husband andSantoba Agham were sitting in her house, the Appellant abusedSantoba Munjaji Agham, Santoba Agham was lying in thehouse of Appellant in the pool of blood, her husband wascoming from country liquor shop, the Appellant stabbed on theleft chest of her husband, by seeing such incident she gotfrightened, PW – 3 [Ranjana Baban Khandare] asked her as towhat happened and she narrated that deceased – SantobaAgham and her husband were lying in the house of Appellantin the pool of blood, PW – 3 brought the hand-cart and herhusband was alive, were the improvements / omissions, whichwere proved from the evidence of PW – 16 [Prakash ShamraoSapkale] who was the Investigating Officer.26.In her cross-examination, she admits that she told the 16CriAppeal-1094-2019.odtPolice in Sevli Hospital, Ner Hospital and Jalna Hospital thather husband narrated her that the Appellant assaulted him.However, in the evidence of PW – 16 [Prakash ShamraoSapkale], who was the Investigating Officer, he denies aboutthe same.27.Though PW – 3 [Ranjana Baban Khandare] and PW – 2[Mangal Prakash Khandare] deposed that the injured – PrakashKhandare narrated about the assault by the Appellant i.e. dyingdeclaration after he was brought to their residence on thehand-cart, the evidence of PW - 1 [Kaikaibai Santoba Agham]show that when she saw injured – Prakash Khandare on thehand-cart he was unconscious. Further, the evidence of PW -10 [Dr. Mohammad Sharif Bismilahkhan] who was the MedicalOfficer at Civil Hospital, Jalna and conducted postmortem ofdeceased – Prakash Khandare show that due to the injuries onthe dead-body, his death was possible within five minutes. Inhis cross-examination, it has further come that according to hisopinion, after receiving such injuries, the patient may go intoshock. Thus, the evidence in respect of oral dying declarationto PW - 3 [Ranjana Baban Khandare] and PW – 2 [MangalPrakash Khandare] is required to be seen with doubt.28. The versions of PW – 2 [Mangal Prakash Khandare] andPW – 3 [Ranjana Baban Khandare in respect of oral dyingdeclarations by deceased – Prakash Khandare are furtherrequired to be seen with doubt as there is no evidence about 17CriAppeal-1094-2019.odtthe fitness of injured – Prakash Khandare in making the oraldying declaration. It has come in the cross-examination of PW– 3 [Ranjana Baban Khandare] that one Doctor, who wasresiding near her house, medically examined deceased –Prakash Khandare and the said Doctor was Dr. Bangali.Admittedly, the Prosecution has not examined the said DoctorBangali. 29.Further, there is variance in their evidence about thedying declarations as according to PW – 2 [Mangal PrakashKhandare], injured – Prakash Khandare stated of assault bythe Appellant only on him, whereas according to PW - 3[Ranjana Baban Khandare], injured – Prakash Khandare gavedetailed account of the entire incident. When PW – 2 [MangalPrakash Khandare] and PW – 3 [Ranjana Baban Khandare]were together at the time of bringing deceased – PrakashKhandare on the hand-cart, there was no reason for glaringinconsistency in respect of the oral dying declaration ofdeceased – Prakash Khandare. This aspect also requires theirtestimonies to be seen with doubt.30.If we consider the evidence of PW – 2 [Mangal PrakashKhandare] and PW – 3 [Ranjana Baban Khandare] who claimsto have visited the spot of incident together and brought thedeceased – Prakash Khandare on hand-cart, there is varianceon material aspect. According to PW – 2 [Mangal PrakashKhandare], injured – Prakash Khandare was brought to her 18CriAppeal-1094-2019.odthouse on the hand-cart, whereas PW – 3 [Ranjana BabanKhandare] deposed that injured – Prakash Khandare wasbrought on the hand-cart to their house. PW – 3 [RanjanaBaban Khandare] admits in her cross-examination that herhouse and the house of deceased – Prakash Khandare wereseparate.31.According to PW – 2 [Mangal Prakash Khandare] as seenfrom her cross-examination, they reached the spot of incidentaround 6:30 pm, whereas according to PW – 3 [Ranjana BabanKhandare], deceased was taken to PHC Sevli between 6:00 pmto 6:15 pm. There is glaring inconsistency in respect of timingsin the evidence of these two star witnesses of the Prosecution.Thus, in the light of the above discussed evidence, thetestimonies of PW – 2 [Mangal Prakash Khandare] and PW – 3[Ranjana Baban Khandare] in respect of dying declarations bydeceased – Prakash Khandare are discarded. 32.The evidence of PW - 1 [Kaikaibai Santoba Agham] showthat on 11.08.2015, deceased – Santoba Agham went to theweekly market at Sevli in the morning at 10:00 am and shewent to the said weekly market at about 2:30 pm. She metdeceased – Santoba Agham in the front of shop of LaxmanMore, who gave her Rs.500/- for purchasing. She went forpurchasing vegetables and after purchasing the vegetables, shereturned back to the shop of Laxman More. She did not foundher husband – Santoba Agham and she kept the vegetables inthe house of daughter of her brother i.e. PW – 2 [Mangal 19CriAppeal-1094-2019.odtPrakash Khandare]. She went in search of her husband –Santoba Agham. She noticed that deceased – PrakashKhandare was brought on the hand-cart in bloody conditionand PW – 3 [Ranjana Baban Khandare] informed her that herhusband was lying in the house of Appellant. She rushed to thehouse of Appellant and saw her husband deceased – SantobaAgham lying in the pool of blood in the house of Appellant.She then raised alarm till 7:00 pm. A vehicle came and herhusband was taken to Hospital. She deposed that her husbanddied on the next day and she lodged the report with the PoliceStation, which was Exhibit – 20. Thereafter, her statementunder Section 164 of Cr.PC came to be recorded. She identifiedthe articles Nos.17 to 19 as the clothes of her husbanddeceased – Santoba Agham.33.The evidence of PW – 1 [Kaikaibai Santoba Agham] showthat she is not the eye witness to the incident. Her furtherevidence that the Appellant might have demanded money toher husband for consuming liquor and since her husbandrefused to give the money, the Appellant stabbed him on theleft side of his chest with the knife, due to which, her husbandbecame unconscious is hearsay in nature.34.Her cross-examination show that her evidence that, shekept the vegetables in the house of daughter of her brother,PW - 3 [Ranjana Baban Khandare] informed her that herhusband was lying in the house of Appellant in bloodycondition, till 7:00 pm she was alone sitting there, the 20CriAppeal-1094-2019.odtAppellant stabbed on left side of chest of her husband withknife, are the omission / improvements, which were provedfrom the evidence of PW – 16 [Prakash Shamrao Sapkale] whowas the Investigating Officer.35.Her cross-examination show that in her report, she hadstated that her husband was lying in tin shade behind thecountry liquor shop. Therefore, her evidence that her husbandwas lying in the house of Appellant is required to be seen withdoubt. The evidence of PW – 15 [Ramesh Pralhad Rathod]show that he acted as spot panch. His evidence show that thespot was situated behind the country liquor shop in villageSevli. The spot panchnama is at Exhibit – 68, which show thatthe spot of incident was ‘Osari’ of one house behind countryliquor shop. The evidence of PW - 16 [Prakash ShamraoSapkale], who was the Investigating Officer show that theincident had taken place in the ‘Osari’ [front portion of thehouse of Appellant]. Even, PW – 1 [Kaikaibai Santoba Agham]in her cross-examination admits that the incident took place inthe ‘Osari’ [front side] of the house and not in the house.From this, it becomes clear that, the incident had not takenplace within the fore corners of wall inside the house ofAppellant. There is nothing in the evidence to show that theentry to the said ‘Osari’ was restricted or the said Osari wasenclosed. In such circumstances, the burden contemplatedunder Section 106 of the Evidence Act, cannot be placed onthe Appellant. 21CriAppeal-1094-2019.odt36.The evidence of PW – 15 [Ramesh Pralhad Rathod] whoacted as panch further show that from the spot of incident, onewater pouch, Chiwda (Farsan) in plastic bag, one disposableglass used fo consuming liquor, one purple colour plastic glass,tow country liquor bottles, bank account pass-book ofMaharashtra Bank, mud, simple soil and blood mixed soil wereseized under the panchnama. This indicate that liquorconsumption was going on at the spot of incident. Further, PW– 1 [Kaikaibai Santoba Agham] admits in the cross-examinationthat at the time of incident, number of persons wereconsuming the liquor in the liquor shop. One can imagine thescenario at such a place and creates room for hypothesis aboutinvolvement 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 ofAppellant from his house pursuant to the disclosure underSection 27 of the Evidence Act vide memorandum and seizurepanchnamas at Exhibit 64 and 65, respectively. The evidence inrespect of discovery of weapon at the instance of Appellant isliable to be discarded, in view of the evidence of PW – 1[Kaikaibai Santoba Agham], wherein, she admits that at thesame time i.e. while lodging the FIR, the Police had shown herweapon and told her that the Appellant assaulted her husbandwith the said weapon [Article – 23] and they have seized it.Even if the evidence in respect of discovery / recovery isconsidered, the said discovery / recovery is after seven (07) 22CriAppeal-1094-2019.odtdays from the arrest of Appellant which further renders itdoubtful. 38.The evidence of PW – 1 [Kaikaibai Santoba Agham]further show that before lodging the FIR, the Appellant wasarrested by the Police. While lodging the FIR, she had seen theAppellant 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 PoliceStation at Sevli and so he arrested him under the panchnamaat Exhibit - 74. This indicate that the Appellant was arrestedon Suspicion before lodging the FIR. This aspect show thatafter arrest of the Appellant, the criminal law was set inmotion. 39.The next evidence is in the nature of CA reports inrespect of articles seized during the course of investigation. Thesaid CA reports are at Exhibits 87 to 90. It show that theblood group of deceased – Santoba Agham was ‘A’, the bloodgroup of deceased – Prakash Khandare was inconclusive andthe blood group of Appellant was ‘B’. The CA report at Exhibit– 87 show that the clothes which were seized from the personof Appellant i.e. articles 15, 16, 17 and 18 i.e. full short shirt,full pant, nicker and spear blade were stained with humanblood and only article – 15 i.e. full shirt of Appellant washaving blood stain of group ‘A’. The said CA reports in respectof the articles will not be of any assistance to the Prosecution
Legal Reasoning
23CriAppeal-1094-2019.odtas the evidence of PW - 16 [Prakash Shamrao Sapkale] –Investigating Officer show that till 21.09.2015 the muddemalwas lying in the Police Station. The evidence of PW - 11 [BaluVitthal Shette], who was the Policeman show that API –Sapkale handed over to him 21 and 3 sealed packets fordepositing with the chemical analysis at Aurangabad and hedeposited the same, accordingly. When the clothes of Appellantand weapon were in the Police custody for a period more thanone (01) months and there being no evidence that they wereimmediately sealed, the CA reports by themselves will not beof any assistance to the Prosecution.40.The other evidence is that of PW - 12 [Manoj ShrikishanJaiswal] who was running country liquor shop near the placeof incident, PW - 13 [Satish Sheshrao Lagame] who wasworking on the said liquor shop, PW - 8 [Kailash RasuKhandare], in whose presence, the shirt of deceased – PrakashKhandare came to be seized under the panchnama at Exhibit -50. This evidence do not take the case of Prosecution anyfurther when the evidence of eye witness, the evidence ofwitnesses before whom the oral dying declaration was madeand the evidence of discovery has been shattered.41.On evaluation of evidence available on record asdiscussed above, the Prosecution has failed to establish that itwas the Appellant who caused the injuries on deceased –Satoba Agham and Prakash Khandare, which resulted in their 24CriAppeal-1094-2019.odtdeath. At the most Suspicion is created against the Appellantfor the reason that the dead bodies were found in the Osari ofthe house of Appellant. However, that is not sufficient toconfirm the conviction. Resultantly, the impugned Judgmentand Order passed by the learned Trial Court needs to beinterfered 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 thelearned Additional Sessions Judge-3, Jalna, in Sessions CaseNo.167/2015 convicting and sentencing the Appellant for theoffence punishable under Sections 302 of IPC, is quashed andset aside.(iii)The Appellant stands acquitted for the offence punishableunder Sections 302 of IPC.(iv) The Appellant be released, if not required in any othercase.(v)The fine amount, if deposited by the Appellant, berefunded to him.(vi)The Record and Proceedings be sent back to the learnedTrial Court.[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]Sameer