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2005 DIGILAW 1607 (BOM)

Ashish Dilip Gore v. State of Maharashtra

2005-11-29

D.G.DESHPANDE, V.M.KANADE

body2005
Judgment V. M. KANADE, J. ( 1 ) THE appellant is the original accused who was convicted by the III Additional Sessions Judge, Thane, for the offence punishable under Section 302 and 392 of the Indian Penal Code and was sentenced to suffer imprisonment for life imprisonment for three years alongwith payment of fine of Rs. 5000/- and in default, to suffer further R. I. for three months, respectively, for the aforesaid offences. The appellant is challenging the said Judgment and Order passed by the sessions Judge in Sessions Case No. 405/99 dated 31st october, 2002. ( 2 ) BRIEF facts are as under :- deceased Vatsala Paraswar used to reside in her house at Bhaskar Colony, Naupada, Thane. She used to stay in the house alone and was of 75 years of age. Her neighbour was one Amol Dabholkar. Appellant-Ashish Gore knew the deceased very well and occasionally stayed with her to give her company and to assist her in her daily chores. The incident in question took place at night between 29. 3. 99 and 30. 3. 99. On 29. 3. 99, the deceased informed her neighbour that she was going to attend the kirtan at Hanuman Mandir at about 9. 30 p. m. and would be returning late and therefore, she informed him that he should not wait for her. According to the prosecution, at about 12. 00 midnight, Amol Dabholkar heard some noise. He inquired as to who was there and according to him, the accused said that he was there. The prosecution case is that the Amol Dabholkar recognised voice of the accused and did not make any further inquiry. On the next day on 30. 3. 99 at about 6. 30 a. m. , the milk vendor knocked the door of the complainant-Amol Dabholkar and told him that his neighbour was not responding to the call given by him. He, therefore, went to the house of the deceased and put on the lights. He noticed that the deceased was lying on a cot and she was covered upto the neck by a bedsheet and found that blood was cozing from her nose. He, accordingly, contacted his other neighbour Sadavarte and called the relative of the deceased Vatsala Paraswar. Accordingly, Gundale, nephew of the deceased came there. He noticed that the deceased was lying on a cot and she was covered upto the neck by a bedsheet and found that blood was cozing from her nose. He, accordingly, contacted his other neighbour Sadavarte and called the relative of the deceased Vatsala Paraswar. Accordingly, Gundale, nephew of the deceased came there. The Doctor was called and the Doctor examined Vatsala paraswar and pronounced that she had died about 7-8 hours earlier. The complainant noticed that the ornaments on the person and from the house of the deceased were missing. Accordingly, Gundale informed the police and they started the investigation. The f. I. R. was recorded. The statement of Amol Dabholkar was registered as F. I. R. The accused was arrested on 31. 3. 99. The dead body was sent for post mortem. The clothes of the accused were also attached. Spot panchanama was prepared. Finger print experts were called and they found some finger prints on the steel container. During the interrogation, the accused confessed and volunteered to produce the ornaments which were stolen by him and were given by him to his friend rodrix and one gold chain was given to a jeweller. Rodrix produced the gold ornaments and the person to whom the gold chain was given viz. one Hasmukh Jain produced the gold chain which was pledged by the accused with him. The chargesheet was thereafter framed in the case and the Sessions Court framed the charge under sections 302 and 392 of the IPC. The accused pleaded not guilty to the said charge. ( 3 ) THE prosecution examined seven witnesses and also relied on the documentary evidence. On the basis of the evidence adduced by the prosecution, the trial court convicted the appellant-accused for offence punishable under Section 302 read with Section 392 of ipc. The trial court held that the prosecution had proved the presence of the accused in the room of the deceased on the night between 29. 3. 99 and 30. 3. 99 on the basis of the evidence of the complainant Amol Dabholkar who had claimed to have recognised voice of the accused at night. The trial Court came to the conclusion that the death of Vatsala Paraswar was a homicidal death on the basis of the Doctors evidence who had performed the post mortem of the deceased viz. PW-6, Dr. Sudhakar S. Jadhav. The trial Court came to the conclusion that the death of Vatsala Paraswar was a homicidal death on the basis of the Doctors evidence who had performed the post mortem of the deceased viz. PW-6, Dr. Sudhakar S. Jadhav. PW-4 John Rodrix did not support the prosecution case. The jeweller with whom the gold chain was allegedly pledged by the accused is not examined. The trial court also relied on the finger print of the accused which was found on the steel container and on the basis of this evidence, convicted the accused for the aforesaid offences. ( 4 ) THE learned Counsel appearing on behalf of the appellant, Mr. Hudlikar had taken us to a Judgment and order of the trial Court and also to the documents to the evidence on record. He has, firstly, submitted that the evidence on record even after it is taken at its face value, does not establish beyond reasonable doubt that the accused had committed the offence of murder and robbery. He submitted that the only evidence to prove the presence of the accused is the statement of PW-1 amol Dabholkar who has made a statement that he heard the voice of the accused at about midnight on 29. 3. 99 and he recognised that accused had come to stay with the deceased. He submitted that this statement does not establish that the accused had stayed with the deceased on that night. He submitted that there was no other evidence to show that the accused was seen entering the house of the deceased on that night. He, therefore, submitted that the presence of the accused in the room of the deceased on that faithful night had not been established by the prosecution. He further submitted that the recovery under Section 27 of the Evidence Act at the instance of the accused had not been established as Rodrix had not helped the prosecution case in any manner and the other jeweller Shri Jain had not been examined by the prosecution. He submitted that mere recovery of the ornaments by the nephew of the deceased is not sufficient to establish recovery under Section 27 of the Evidence Act as it was the duty of the prosecution to first establish that the ornaments were recovered at the instance of the accused. He submitted that mere recovery of the ornaments by the nephew of the deceased is not sufficient to establish recovery under Section 27 of the Evidence Act as it was the duty of the prosecution to first establish that the ornaments were recovered at the instance of the accused. He lastly submitted that the prosecution had not established that the death of Vatsala Paraswar was a homicidal death and he relied on the evidence of PW-6 - Dr. Sudhakar Jadhav in support of the said statement and also on the post mortem notes. ( 5 ) LEARNED APP on behalf of the State, Smt. Bhosale submitted that the cause of death of Vatsala was homicidal and though there are no external marks on the neck by strangulation, the post mortem notes indicated that trachea was found to be compressed on its internal examination. She further submitted that the accused used to stay with the deceased occasionally and therefore, the complainant Amol Dabholkar knew the voice and there was no reason why his testimony regarding the voice recognition of the accused should be discarded. She further submitted that the finger print of the accused was found on the steel container which corroborated his presence in the room. The recovery which was at the instance of the accused was the factor which clearly established that the accused had murdered the lady and had robbed her gold ornaments. She submitted, therefore, that the finding of the trial court may be confirmed and the appeal may be dismissed. Findings :- ( 6 ) WE have given our anxious consideration to the submission made by the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State. In the present case, the prosecution has examined seven witnesses viz. PW-1 Amol dabholkar who was the neighbour of the deceased and who filed the complaint. PW-2 is the nephew of the deceased nandkumar Gundale, PW-3 Samindra S. Pathak, PW-4 is john Joseph Rodrix, PW-5 Chandan Sharad Gupte, PW-6 dr. Sudhakar S. Jadhav, PW-7 Dilip Bhaskarrao Shinde. ( 7 ) PW-3 S. S. Pathak did not support the prosecution case and was declared hostile. He was examined to show that the accused had met him on 29. 3. 99 and had asked him whether he knew any gold smith since he wanted to sell gold. Sudhakar S. Jadhav, PW-7 Dilip Bhaskarrao Shinde. ( 7 ) PW-3 S. S. Pathak did not support the prosecution case and was declared hostile. He was examined to show that the accused had met him on 29. 3. 99 and had asked him whether he knew any gold smith since he wanted to sell gold. This witness, however, did not support the prosecution case. PW-4 J. J. Rodrix also has not supported the prosecution case, however, he was not declared hostile by the Public Prosecutor nor was he cross-examined with the permission of the Court. He has denied that the accused had shown him a gold chain and stated that he wanted some money. This witness has denied that the accused came to Abhishek Jewellers near anand Theatre at Kopri and the shopkeeper purchased the chain for Rs. 3000/ -. He also denied that the accused had handed over some gold bangles, silver coins on that day. PW-5 C. S. Gupte also has not supported the prosecution case. This witness was declared hostile and cross-examined by the APP. Even in the cross-examination, he did not support the prosecution case. The prosecution has not examined Shri Jain, the proprietor of Abhishek Jewellers to prove that the accused had sold gold chain to him. Thus, in our view, the prosecution has clearly failed to establish the recovery of gold ornaments at the instance of accused. Therefore, the recovery under Section 27 of the gold ornaments is not established at all by the prosecution. ( 8 ) IN order to prove the presence of the accused inside the room of the deceased on that night, the prosecution has examined Amol Dabholkar. PW-1 has stated in his evidence that he knew the accused and the accused and the deceased were well acquainted. He has further stated that the accused used to help the old lady and sometimes he came to sleep in her room. She was staying alone. PW-1 in his evidence has stated that on 29. 3. 99, Smt. Paraswar told him in the evening that she had to attend kirtan in the evening and that she would return very late at about 1. 00 p. m. and therefore, told him not to wait for her. Thereafter, he has stated as under :- "at about 0. PW-1 in his evidence has stated that on 29. 3. 99, Smt. Paraswar told him in the evening that she had to attend kirtan in the evening and that she would return very late at about 1. 00 p. m. and therefore, told him not to wait for her. Thereafter, he has stated as under :- "at about 0. 00 hrs in that night i heard noise of chain of the door of the house of smt. Paraswar and that I asked as to what was the matter and who was there. Then the accused replied that he had come there. Then in the morning at about 6. 45 a. m. , milkman came to the house of Smt. Paraswar. " On the basis of this statement, it is argued by the prosecution that pw-1 had identified the voice of the accused and had established the presence of the accused in the house. He has thereafter stated that he called thereafter smt. Paraswar on 2-3 occasions and noticed that the door of her house was broken. On hearing this, PW-1 went near the door and when nobody responded, entered the house and found the lady lying on her back with a bleeding nose. He thereafter contacted Sadavarte and from his house telephoned PW-2 - nephew of Smt. Paraswar who immediately came there and then Dr. Mokashi was called who informed them she was dead. He has stated after the nephew of Smt. Paraswar arrived, he came back to his room and after the Doctor arrived, he again went back and noticed that all the ornaments from the person of Smt. Paraswar were missing. It is not possible to accept the evidence of this witness so far as his identification of the accused is concerned. It is admittedly not the case of the prosecution that the accused used to reside with the deceased every day. Even PW-1 in his evidence stated that the accused used to visit her and sometimes used to sleep in the house of the deceased during the night time. It is difficult to accept the testimony of PW-1 that as the person who gave a reply to him in the midnight on 29. 3. 99 was the accused. PW-1 has not stated that the accused stated his name when PW-1 inquired who is there. It is difficult to accept the testimony of PW-1 that as the person who gave a reply to him in the midnight on 29. 3. 99 was the accused. PW-1 has not stated that the accused stated his name when PW-1 inquired who is there. It is difficult, therefore, to accept the prosecution case on the sole version of PW-1 and that too on the identification of the voice to come to a conclusion that the accused had entered the room. Another important circumstance is that when PW-1 went near the door of the deceased, henoticed it was broken. If the accused had committed the offence, there was no reason for him to break the door as according to PW-1 he was already inside the room. The version of PW-1, therefore, cannot be accepted. There is no other corroboration to the statement of PW-1 that the accused was last seen in the room by any other person. Thus, the submission made by learned Counsel appearing on behalf of the accused will have to be accepted. It is a well settled position in law that in a case which is based on circumstantial evidence, each circumstance has to be proved beyond reasonable doubt and even if there is a single missing link, the benefit had to go to the accused. So far as pw-2 is concerned, he admittedly arrived at the room at about 8. 00 a. m. after he received a phone call from amol Dabholkar. PW-2, therefore, is of no assistance to prove that the accused had slept in the room on the said night. ( 9 ) SO far as the evidence of finger print is concerned, it is admitted position that no time has been fixed regarding the time when thumb impression was formed on the stainless steel glass. The finger print, therefore, does not establish that the accused was in the room on the night between 29. 3. 99 and 30. 3. 99. ( 10 ) FINALLY from the examination of PW-6 Dr. Sudhakar jadhav also, there is some doubt regarding the actual cause of death. PW-6 in his cross-examination has admitted that there was no external injuries over the neck and face of the deceased. He has, however, stated that both the lungs were in edematous condition. 99 and 30. 3. 99. ( 10 ) FINALLY from the examination of PW-6 Dr. Sudhakar jadhav also, there is some doubt regarding the actual cause of death. PW-6 in his cross-examination has admitted that there was no external injuries over the neck and face of the deceased. He has, however, stated that both the lungs were in edematous condition. He has admitted that pulmonary edema is a condition which indicates presence of water in lungs and such condition can partially occur in the case of elderly people about 65 years of age. He has further admitted that in such case, the patient has to undergo labourous breathing and this can led to congestion of brain and lungs. He has further admitted that externally he did not find any marks indicating strangulation. The Doctor has further admitted that the possibility of natural death in such circumstance could not be given by the Doctor who performed the post mortem. The possibility of the deceased dying due to natural death is not ruled out. The deceased was of 75 years of age and the Doctor himself has stated in his evidence that the possibility of natural death cannot be ruled out as the deceased was having a condition which is known in medical parlance as pulmonary edema. So far as the disappearance of ornaments are concerned, there is every possibility that it could have been removed by any person from 6. 30 a. m. onwards. The mere identification of the ornaments by pw-2 is not of any assistance to the prosecution since the recovery of these ornaments at the instance of the accused has not been proved and therefore, the alleged recovery cannot fall within the purview of Section 27 of the Evidence Act. ( 11 ) THUS, in our view, there is absolutely no evidence to link the accused with the commission of the said offence. The appeal, therefore, is allowed. The judgment and Order passed by the trial Court is set aside. The accused is acquitted of the offences punishable under Section 302 and 392 of the IPC. The accused to be released forthwith unless required in any other case. The appeal is allowed in the above terms. Certified copy expedited.