Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 810 (BOM)

Ramesh Ramchandra Maigane v. State of Maharashtra

2009-07-08

A.P.LAVANDE, PRASANNA B.VARALE

body2009
JUDGMENT :- Prasanna B. Varale, J. Being aggrieved by the judgment and order dated 16th December, 2003 passed by the Additional Sessions Judge, Washim in Sessions Trial No.156 of 2001 convicting the appellants for the offence punishable under Section 302 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay a fine of Rs.3000/- and in default of payment of fine to undergo simple imprisonment for three months; the appellants have preferred the present appeal. 2.The appellant No.2 Ganesh Manikrao Umathe, who was released on furlough, did not surrender before the prison authorities. This Court, by an order, dated 29th January, 2009, directed that the appeal be listed for final hearing according to its order without waiting for surrendering of appellant No.2 in the jail and further expressed hope and trust that the Jail Authorities would issue arrest warrant against appellant No.2, who did not return to jail after availing the furlough. Hence, the appeal is taken up for hearing. 3.The case of the prosecution in brief is as under : One Mahadeo Ramkrushna Thakare lodged a report (Exh.22) at Police Station, Asegaon. It was stated in the report that said Mahadeo Ramkrushna Thakare was working as teacher in one Matoshri Shevantabai Adivasi Ashram School at village Bilegaon and teaching the students of standard I to VII. It was further stated that he was residing in the quarter within the premises of the school. On 07.09.2001, at about 8 o' clock in the morning, the students of the school namely - Sandesh Vinayak Pande and Bharat Manikrao Wagadkar informed him that Pradip Sir was lying in his room and blood was seen on his leg. On receiving the information, Mahadeo rushed to the room along with the other employees and found that the door of the room was open and one student namely Vitthal Narayan Shikare aged about 11 years was lying in dead condition and his intestines were protruding out and blood was lying there. Similarly one Pradip Pande, teacher was also lying in the pool of blood. He informed that in the intervening night of 06.09.2001 and 07.09.2001, some unknown person delivered blows with sharp weapon and thereby committed the murder of Pradip Sir and Vitthal. Similarly one Pradip Pande, teacher was also lying in the pool of blood. He informed that in the intervening night of 06.09.2001 and 07.09.2001, some unknown person delivered blows with sharp weapon and thereby committed the murder of Pradip Sir and Vitthal. PW-8 Mohammad Jahir Sheikh Wazir, PSI, who was attached to Police Station, Asegaon at the relevant time, on receiving the report, registered the offence vide Crime No.50/2001. He proceeded to the spot. The investigation machinery was set in motion, the investigation, such as drawing inquest panchnama of the bodies, referring the bodies to the autopsy surgeon for conducting postmortem, recording statements of the witnesses, was carried out. The assistance of the Dog Squad was also sought. The dog handler provided the services of tracker dog. On completion of investigation, the charge sheet was filed against the accused persons. The case being exclusively triable by Court of Session, the same came to be committed to the Court of Session. 4.On appreciation of the evidence led by the prosecution, the learned trial Court found both the accused guilty of the offence, charged against them and convicted them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them accordingly. The said judgment is under challenge. 5.Smt. U.K. Kalsi, the learned Counsel appearing on behalf of the appellant submitted that the prosecution has utterly failed to establish its case. It was further submitted that the circumstances on which the learned trial Court relied upon, are (i) the motive; (ii) the last seen theory; and (iii) the recovery of the weapons. She further submitted that all these circumstances are weak piece of evidence. There is no concrete material or any concrete evidence presented by the prosecution so as to connect the appellant with the crime. The learned Counsel further submitted that the prosecution case rests on suspicion and it is not in dispute that the suspicion, however strong it may be, cannot take place of proof and it is unsafe to convict a person merely on the ground of suspicion. She further submitted that the learned trial Court has committed error while appreciating the evidence and has ignored the law regarding of the circumstantial evidence. 6.Smt. K.S. Joshi, the learned Additional Public Prosecutor appearing on behalf of the respondent/State submitted that there is strong evidence against the accused. She further submitted that the learned trial Court has committed error while appreciating the evidence and has ignored the law regarding of the circumstantial evidence. 6.Smt. K.S. Joshi, the learned Additional Public Prosecutor appearing on behalf of the respondent/State submitted that there is strong evidence against the accused. Though there is no eye witness to the incident, the circumstances are of such nature that they connect the appellant/accused with the commission of crime. Learned APP thus supported the judgment and order under challenge. 7.We have given our anxious consideration to the submissions made by the learned Counsel for the appellant and the learned APP for the respondent and we have gone through the record. 8.The circumstances which are relied upon by the trial Court are as follows. (i) The death of the deceased Pradip and Vitthal was homicidal; (ii) The motive; (iii) The accused persons were seen by the witnesses soon after the incident; (iv) The recovery of the weapons namely knife and nylon rope; and (v) The absconding of the accused persons. 9.We are dealing with these circumstances accordingly. To prove that the death was homicidal, the prosecution heavily relied on Exh.14 i.e. Inquest Panchnama of the dead body of Pradip Pande and Inquest Panchnama of Vitthal Shikare (Exh. 23) and the Postmortem Reports of Pradip Pande at Exh.39 and Vitthal Shikare at Exh.40 which are proved through Dr. Rajkumar Rathod. Perusal of Exh.14 and Exh.23 shows that the dead body of Vitthal Shikare which was identified by his brother Madhao Narayan Shikare, was found in pool of blood. The intestines were protruding out of the abdomen; whereas it was found that there were injuries on the forehead near left eye brow on the person of Pradip Pande. There was injury on the upper arm and one injury on the left upper arm. The Inquest Panchnama further disclosed that the dead body of Pradip Pande was having four injuries at a distance of 2" on the right side of abdomen and below it at a distance of 1" there was another injury. Dr. Rajkumar Rathod (PW-4) in his substantial evidence before the Court deposed about the injuries caused to Pradip Pande, which were, incised injury - 2 cm by long deep, 2 cm long by deep. 2 cm by long deep at upper abdomen (three injuries). Dr. Rajkumar Rathod (PW-4) in his substantial evidence before the Court deposed about the injuries caused to Pradip Pande, which were, incised injury - 2 cm by long deep, 2 cm long by deep. 2 cm by long deep at upper abdomen (three injuries). All the injuries were 2-1/2 cm apart from each other from on right side of abdomen placed oblique. All the above injuries were deeply placed and opened in the abdomen cavity. 2 by deep 2 by deep incised wound placed obliquely on right side of over chest and 2 cm apart from each other opened in the inner side of chest. Incised wound 2 by 1 cm right forearm middle part on outer aspect. Incised wound 2 x 1 cm on right arm middle part anterior aspect. Incised wound 5 x 1/4 cm right elbow joint. Incised wound 2 x d right side of upper abdomen opened inside the abdomen. Incised would 2 x 1/4th x 1/4th on right shoulder. Incised would 1/2 x 1/2. 1 x 1/2 cm on right growing. Incised would 1/2 x 1/2 at left thigh blow. Black coloured stain of rope impression admeasuring 1 x 1/8 cm all around the neck. Right side 2 ribs lower fracture. The injuries caused to Vitthal Shikare were, incised would 2 x deep opened inner side of abdomen and intestines coming out, obliquely in nature on left side of middle abdomen. Incised would 2 x deep opened inner side of abdomen obliquely placed on right side of abdomen at middle part intestine coming out. Incised wound 2 x deep opened inner side of abdomen placed transversely at umbilicus, intestine coming out. Incised wound 2 x 1/2 cm below umbilicus placed transversely. Incised would 2 x 1. 1/2 x 1/2. 1/2 x 1/2. 2 x 1/2 cm all around inner elbow joint. 1/2 x 1/2. 1/2 x 1/2 incised wound at left arm. 1/2 x 1/2 incised would on left side of chest clavicular region. 2 x 1/2 incised wound on back. Right side third and fourth ribs fracture present. The doctor further found walls of abdomen injured peritonium injured. Multiple incised type of wound 2 x 1; 2 x 1 at two side and 2 x 1/2 at other side in the large intestine. Dr. 2 x 1/2 incised wound on back. Right side third and fourth ribs fracture present. The doctor further found walls of abdomen injured peritonium injured. Multiple incised type of wound 2 x 1; 2 x 1 at two side and 2 x 1/2 at other side in the large intestine. Dr. Rajkumar Rathod (PW-4) opined that the injuries caused to Pradip Pande and Vitthal Shikare were by hard and sharp object like knife. He further opined that the probable cause of death was cardio respiratory arrest due to hemorrhagic shock due to multile injuries and the said injuries were sufficient to cause death in ordinary course of nature. Nothing tangible was brought in the cross-examination of this witness. Therefore, we have no hesitation to hold that Pradip Pande and Vitthal Shikare died homicidal death. 10.the next question before us is whether the homicidal death of these two person was at the hands of the appellant. To show the complicity of the appellant in the crime, the prosecution relied on the motive, the last seen theory and recovery of weapons. The material witnesses are PW-3 Anand Mendke; PW-5 Sharad Agaltare, PW-7 Vanita. PW-3 Anand deposed that he is employee of Matoshri Shevantabai Adivasi Ashram School, Vilegaon. He stated that he overheard the dispute between the accused and Pande Sir and at that time the accused were uttering the words that "they will have to show Pande Sir a way as he is giving them trouble". He further deposed that Pande Sir informed him that the accused persons were roaming in front of his room. He further deposed that on 07.09.2001, the accused persons were not in the hostel and they were not seen thereafter. The defence brought on record the omission about the discussion amongst the accused on 06.09.2001 to show deceased a way as well as dispute between Pande Sir and accused on 06.09.2001 and also about the timing i.e. the witness left the mess at 7 o' clock in the evening on that day and the omission is in respect of time of leaving at 7 o' clock. In view of the omission on the material aspect of the dispute between the accused persons and Pande Sir as well as the utterances of the words that the accused persons wanted to show the deceased a way, we have no hesitation to say that this witness is not a reliable witness. No reliance can be placed on such a witness. 11.PW-5 Sharad who was a student in the school and aged about 14 years at the time of his deposition. The incident which was occurred in the year 2001, it can be said that at the relevant time, this witness was of 11 to 12 years. In his deposition, PW-5 Sharad deposed that the appellant/accused No.1. Ramesh was working as a cook whereas the appellant/accused No.2 Ganesh was working as helper in the school. He further stated that on 06.09.2001 after his dinner, he slept in the courtyard of the school on the ota of flag along with other students namely Dnyaneshwar, Devidas and other 7 to 8 students. He further deposed that in the midnight at about 03:00 to 03:30 a.m., he got up because of the dog barking and saw that the appellant/accused Ramesh was proceeding towards the village. He informed this fact to Devidas and Dnyaneshwar. In the morning, he came to know about the murder of Pradip Sir and Vitthal. 12.Smt. U.K. Kalsi, the learned Counsel for the appellant submitted that this witness being a child witness, the testimony of this witness will have to be scrutinised carefully. She further submitted that at the relevant time, this witness was of 11 years of age and as such being a boy of tender age, he did not mature to understanding. Furthermore, he only stated that he had seen appellant Ramesh proceeding towards village in the morning. Mere fact that the appellant was seen by this witness in the morning is not sufficient to connect the appellant with the crime. She further submitted that this is a weak piece of circumstance. She further submitted that in the background of the additional statement given by the appellants, the appellants gave explanation. It is submitted in the explanation that the appellant wanted to attend marriage ceremony and as such with the oral permission of the headmistress, the appellant proceeded to another village in the evening of 06.09.2001. She further submitted that in the background of the additional statement given by the appellants, the appellants gave explanation. It is submitted in the explanation that the appellant wanted to attend marriage ceremony and as such with the oral permission of the headmistress, the appellant proceeded to another village in the evening of 06.09.2001. The learned Counsel for the appellant submitted that as this was a possible and probable explanation given by the appellant, the testimony of PW-5 itself would not connect the appellant with the crime. We find considerable merit in the submission of the learned Counsel. 13.PW-7 Vanita deposed that the appellants Ganesh and Ramesh were the employees in the hostel. The deceased Pradip Sir was also employee in the said school as a teacher; whereas deceased Vitthal was a student of 4th standard. She deposed that the notices were issued to the appellant/accused Ramesh on 11.08.2001 and 03.09.2001. She further deposed that a meeting was scheduled on 04.09.2001 in the school to discuss the issue of proper management and in the said meeting the employees were made aware of their responsibilities. She further deposed that on 07.09.2001, she came to know about the murder of Pradip Sir and Vitthal. On 07.09.2001, all the employees of the school were present except the accused persons. By considering the testimony of this witness, we are unable to accept that because of the issuance of notice which was much prior to the incident i.e. on 11.08.2001, the appellants carried grudge against Pradip Pande, a teacher and merely because of grudge against Pradip Pande. We are also unable to accept that because of such notice, the appellant/accused had a grudge against Vitthal Shikare who was a student of the school and was noway concerned with any administration. Therefore, in our opinion, the prosecution neither proved the motive nor proved the circumstance of last seen against the appellant. Moreover this piece of evidence is weak piece of evidence so as to connect the appellant with the crime. 14.The prosecution tried to rely on the recovery of weapons i.e. knife and rope. Insofar as the recovery of these articles is concerned, the same is sought to be proved through PW-2 Akhtarkhan. The recovery of the knife was near the nullah and beneath some stones which were near the tree. The recovery of these articles is dated 08.09.2001. 14.The prosecution tried to rely on the recovery of weapons i.e. knife and rope. Insofar as the recovery of these articles is concerned, the same is sought to be proved through PW-2 Akhtarkhan. The recovery of the knife was near the nullah and beneath some stones which were near the tree. The recovery of these articles is dated 08.09.2001. The medical evidence shows that there were injuries on the person of Pradip Pande as well as Vitthal Shikare. The medical evidence nowhere suggests the use of rope in the commission of crime. It is the prosecution case that there are two accused persons and the offence is committed with the weapons knife and rope. The prosecution has utterly failed to show that which is the weapon used by the accused. In absence of any material, it is very difficult to connect these accused persons with the help of these weapons to connect with the crime. 15.The next circumstance which was relied upon by the prosecution that the appellant was absconding from the date of incident and he was arrested by the police machinery. We find that PW-8 has deposed that though he searched for the accused persons, he was unable to find them out and they surrendered before Police Station, Mangrulpir in the night of 07.09.2001. Thereafter, he submits that on 08.09.2001, he effected the arrest of the accused. There is no material in the form of any arrest panchnama so as to show that the accused were arrested by PW-8. In the absence of any cogent evidence, we are unable to accept the submission of the prosecution that the appellants were absconding and they were arrested. The prosecution has also relied on the dog tracking evidence and to that effect, PW9 PSI of the Dog Squad Unit has deposed that the sniffer dog was allowed to sniff the latch/handle of the door. Thereafter, the sniffer dog went towards the house of Ramesh, entered the house and started barking. It is not in dispute that the evidence of dog barking is a fragile piece of evidence. We may refer to the judgment of Apex Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh (reported in AIR 2001 SC 2677 ). It is not in dispute that the evidence of dog barking is a fragile piece of evidence. We may refer to the judgment of Apex Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh (reported in AIR 2001 SC 2677 ). The Apex Court has observed that the investigating agencies can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them. In view of the judgment of the Apex Court, we have no hesitation to say that this circumstance does not help the prosecution to connect the appellant with the offence in absence of any substantive evidence. 16.Taking overall view of the matter and upon reappreciation of the evidence, we find that the learned trial Court has failed in arriving at right conclusion on the basis of the evidence on record. The circumstances alleged against the accused are not proved by the prosecution. The chain of circumstances is not complete so as to connect the appellant with the crime and exclude every hypothesis of the innocence of the appellant/accused and in such event the benefit of doubt must go to the appellant/ accused. 17.In the result, the appeal deserves to be allowed and the same is allowed accordingly. The impugned judgment and order, dated 16th December, 2003 passed by the learned Additional Sessions Judge, Washim in Sessions Trial No.156/2001 is quashed and set aside. The appellant No.1 Ramesh Ramchandra Malgane is acquitted of the offences for which he was charged and he is ordered to be released forthwith, in case he is not required in any other case. Since the evidence led by the prosecution against both the accused, once the appellant No.1 is held entitled to acquittal the necessary sequitur is that the appellant No.2 is also entitled to acquittal. Hence, appellant No.2 is also acquitted of the offence punishable under Section 302 of the Indian Penal Code.