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2012 DIGILAW 1433 (BOM)

State of Maharashtra v. Rajendra Ashar

2012-08-01

A.S.OKA, SHRIHARI P.DAVARE

body2012
Judgment SHRIHARI P. DAVARE, J.:- By the present appeal fi1ed by the appellant State, the appellant has taken the exception to the judgment and order of acquittal dated 16th September, 1992 rendered by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.635 of 1989, thereby acquitting the respondent accused for the offence punishable under Section 302 of Indian Penal Code. 2. The facts, in brief, which gave rise to the present appeal are as under :- (i) The allegation against the respondent are that he committed murder of one Geeta Shyamprit Rajbal i.e. sisterin- law of the accused, on 23rd April, 1989 at about 9.30 a.m. at Hussain Sabs Chawl, Saki Vihar Road, Andheri, Bombay. It is alleged that the complainant Shri Shyamprit Rajbhar i.e. husband of the victim Geeta was married to deceased Geeta who was the sister-in-law of the accused, namely, Rajendra Ashar and the said marriage was arranged by the accused. It is also alleged that before the marriage, it was agreed that the complainant would look after the children of the accused since the wife of the accused had to go to Dubai. Accordingly, the marriage of the complainant i.e. PW-1 took place with deceased Geeta on 27th March, 1989 at Tunga village. However, after the marriage, the complainant tried to back out from the above referred agreement. Hence, accused and his wife with several persons from the neighbour-hood and in their presence demanded in writing from the complainant that he would look after the children of the accused in the absence of the wife of the accused. However, the complainant refused to give such writing. Hence, accused threatened him in presence of all the persons assembled there that he would murder the complainant and his wife on the next day. (ii) It is alleged that, on the next day morning at about 9.00 a.m., when the complainant was at Amin's shop purchasing kerosene, one woman came there and informed that accused was assaulting his wife Geeta with a knife. The complainant, therefore, rushed to his house and on entering his house he saw that the accused was stabbing his wife with knife and his wife was lying on the floor. On seeing the complainant, the accused ran away leaving the knife in the body of Geeta. The complainant, therefore, rushed to his house and on entering his house he saw that the accused was stabbing his wife with knife and his wife was lying on the floor. On seeing the complainant, the accused ran away leaving the knife in the body of Geeta. Then the complainant removed the knife from the abdomen of Geeta and thereafter with the help of neighbour Laxman Waghmare he removed Geeta to Rajawadi Hospital where she was declared dead before admission. Thereafter PW5 PSI Koli belonging to Sakinaka Police Station came to the hospital along with the staff on receipt of telephonic information at about 10.25 a.m. from the constable stationed at Rajawadi Hospital. The said message was taken down by PSI Koli and the said note of message is at Exh.27. Accordingly, PSI Koli recorded the statement of PW- 1 complainant in the hospital which was treated as F.I.R. Thereafter, he drew the inquest panchanama of the dead body of Geeta which was identified by PW- 1 complainant i.e. her husband. Thereafter the said dead body was sent to the Rajawadi Coroner's Court for the postmortem purpose. (iii) It is also the case of the prosecution that PSI Koli visited Tunga village along with the complainant and prepared the panchanama of scene of offence and took the charge of the knife (Article-3) as well as the sample of blood and other articles lying in the house of the complainant. Moreover, PSI Koli recorded statements of neighbours and made enquiry regarding the whereabouts of the accused. It is reported that the accused was found hiding in a dilapidated room in Tunga Village at the distance of about IS minutes from the scene of offence. Accordingly, the accused was apprehended and was brought to the police station and the offence was registered against him under C. R.No.288 of 1999 and he was put under the arrest. Moreover, the police personnel took the charge of blood stained clothes of the accused under panchanama Exh.11. So also, they took charge of the blood stained clothes of the complainant under panchanama Exh.13. So also, the constable returned from the Rajawadi Hospital with the clothes of deceased and the same were also taken charge by the police personnel under the panchanama Exh.22. So also, they took charge of the blood stained clothes of the complainant under panchanama Exh.13. So also, the constable returned from the Rajawadi Hospital with the clothes of deceased and the same were also taken charge by the police personnel under the panchanama Exh.22. Accordingly, all the seized articles/clothes were sent to the Chemical Analyzer's office for analysis purpose along with the forwarding letter dated 25th April, 1989 and Chemical Analyzer's report thereof was received on 14th August, 1989 (Exh.32 collectively). Moreover, blood sample of the accused was taken by the police surgeon and same was forwarded directly to the Chemical Analyzer's office and the report thereof dated 5th August, 1989 was received which is at Exh.33. Accordingly, after completion of the investigation, charge-sheet was filed against the accused on 23rd June, 1989 and the said case was committed to the Court of Sessions on the same day. 3. Accordingly, the learned Additional Sessions Judge, Greater Bombay, framed the charge against the accused on 27th July, 1992 (Exh.A) for the offence punishable under Section 302 of Indian Pen a Code, however, the accused pleaded not guilty to the said charge and claimed to be tried. 4. To substantiate the charges levelled against the accused, the prosecution has examined as many as is witnesses as mentioned below :- (1) PW- 1 Shyam Prit Rajbal - complainant and eye witness, (2) PW -15 M ahananda Waghmare another eye witness. (3) PW-6 Husseinsab Peersaheb Shaikhresident oflocality i.e. Tunga Gaon, Hussein Sahebki Chawl, Sakinaka, Mumbai - 70, and witness to the quarrel which took place in the evening prior to the incident of murder. (4) PW-7 Shakuntala Shivkumar Tiwari-resident of locality i.e. Tunga Gaon, Hussein Sahebki Chawl, Sakinaka, Mumbai - 70, and witness to the quarrel which took place in the evening prior to the incident of murder. (5) PW-8 - Abdul Malang Shaikh - resident of locality i.e. Tunga Gaon, Hussein Sahebki Chawl, Sakinaka, Mumbai - 70, and witness to the quarrel which took place in the evening prior to the incident of murder. (6) PW-12 Chandrakant Shivlingappa Mali - resident of locality i.e. Tunga Gaon, Hussein Sahebki Chawl, Sakinaka, Mumbai - 70, and witness to the quarrel which took place in the evening prior to the incident of murder. (7) PW-2 Ravan Dnyanoba Patil - panch to the seen of offence of incident (Exh.7). (6) PW-12 Chandrakant Shivlingappa Mali - resident of locality i.e. Tunga Gaon, Hussein Sahebki Chawl, Sakinaka, Mumbai - 70, and witness to the quarrel which took place in the evening prior to the incident of murder. (7) PW-2 Ravan Dnyanoba Patil - panch to the seen of offence of incident (Exh.7). (8) PW-3 Shaikh Amin Hussain Sahab-panch to the inquest panchanama (Exh.9). (9) PW-4 Shankar Sargul Rajbal-panch to the panchanama of seizure of clothes of the accused (Exh. 11). (10) PW-5 Ramchandra Satyappa Kolipanch to the seizure of clothes of the complainant (Exh.30). (11) PW-9 Narendra Gurudas Dhemre Draftsman, who prepared the plan of the scene of offence (Exh. 18). (12) PW-10 Jagdish. Shivpalsingh Bhise, Police Constable, who was on duty at Rajawadi Hospital and who maintained E.P.R. Register (Exh.21). (13) PW-11 DrVidyadhar Maruti Thenge who performed the postmortem and issued postmortem notes (Exh.24). (14) PW-13 Prahlad Sitaram Koli, P.I. and Investigating Officer -1. (15) PW-14Anil Sakhararn Mane-P.I. and Investigating Officer -2. 5. The defence of the accused is of total denial and he contended that he has been implicated in this case falsely, and therefore, claimed to be innocent. However, he neither examined himself on oath nor examined any defence witness to support the said defence. 6. The learned APP canvassed that there are two eye witnesses i.e. PW-1 Shyam Prit Rajbal- complainant and husband of the victim and PW-15 Mahananda Waghmare , who have narrated the incident with graphic details and their testimonies corroborate with each other which connect the accused with the crime. He also submitted that the testimonies ofPW-6 Husseinsab Peersaheb Shaikh, PW-7 Shakuntala Shivkumar Tiwari, PW-8 Abdul Malang Shaikh and PW-12 Chandrakant Shivlingappa Mali, who are the residents of the same locality and who witnessed the quarrel which took place in the evening prior to the occurrence of incident i.e. they narrated the prelude to the occurrence of the incident and their testimonies are in consonance with each other and further in tune with the testimonies of aforesaid two eye witnesses in respect of main occurrence of the incident which cumulatively connect the accused with the crime. He further submitted that deposition of PW-11 Dr. He further submitted that deposition of PW-11 Dr. Vidhyadhar Thenge, postm0l1em notes (Exh.24), and inquest panchan ma (Exh.9) leaves no doubt that deceased Geeta met with the homicidal death and the ocular and documentary evidence adduced/produced by the prosecution bestowed the authorship of the said murder upon the accused. He further submitted that the clothes of the accused were sent to the Chemical Analyzer's office for examination purpose along with the forwarding letter Exh.32 which bore the blood stains as per the Chemical Analyzer's report. He further submitted that blood sample of the accused was sent to the Chemical Analyzer's office for examination purpose along with the forwarding letter and Chemical Analyzer's report thereof (Exh.33) discloses that its blood group was of "B". Moreover, the blood stained clothes of the accused were sent to the Chemical Analyzer's office for examination purpose along with the forwarding letter (Exh.32 collectively) and Chemical analyzer's report thereof (Exh.32 collectively) disclose that the petticoat and maxi of the victim bore blood stains of "B" group i.e. the blood group of accused but accused failed to give any explanation in that respect. Hence, it is submitted that the said corroborative piece of evidence connects the accused with the crime c1inchingly. Therefore, the learned APP urged that the present appeal be allowed and acquittal of the accused for the offence punishable under Section 302 of Indian Penal Code be quashed and set aside and accused be convicted there for. 7. The learned counsel for the accused remained absent and no averments were advanced on behalf of the accused. 8. We have perused the oral, documentary and medical evidence and the evidence of Forensic Science Laboratory and also perused the impugned judgment and order dated 16th September, 1992 and heard the submissions advanced by learned APP for the appellant State. 9. At the outset, coming to the evidence of the eye witnesses i.e. PW-1 Shyam Prit Rajbal, who is the husband of the victim Geeta and complainant, has stated that accused is Geeta's sister's husband and his marriage was arranged by the accused. Accused had two children aged about 2 and 3 years respectively. Before marriage, it was agreed that he would look after the two children of the accused since the wife of the accused had to go to Dubai. Accordingly, the marriage took place on 27th March, 1989 at Tunga Village. Accused had two children aged about 2 and 3 years respectively. Before marriage, it was agreed that he would look after the two children of the accused since the wife of the accused had to go to Dubai. Accordingly, the marriage took place on 27th March, 1989 at Tunga Village. He also stated that, after the marriage i.e. on 22nd April, 1989 at about 8.00 p.m., the accused and his wife started insisting upon him to give them in writing that he and his wife would not leave Bombay for two years. The accused used to reside in a room in front of his room. At that time, about 100 people had attended their marriage and some of them had also assembled in front of his room since they were called by the wife of the accused to witness the agreement, however, PW -1 Shyam Prit Rajbal refused to give such writing since he desired to go to his native place. He stated before the persons assembled there that he would not give anything in writing but he would look after the children of the accused when wife of accused would go to Dubai. He further stated that, if he goes to native place, he would, if necessary take said children along with him, however, accused did not agree with the said suggestion and threatened that he would murder the complainant and his wife on the next day, and left away. PW -1 Rajbal further stated that, next day at about 9.00 p.m. when he had been to Amin's shop to get kerosene, about 4-5 rooms away from his house and when he was waiting there, one lady came and reported him that the accused who was known as Machhiwala, since he used to sell the fish, was assaulting his wife with knife, and hence, he rushed to his room and after entering into the room he saw that accused was stabbing his wife with knife and she was lying on the floor. On seeing the complainant, the accused fled away leaving the knife into the body of complainant's wife He stated that accused had also stabbed his wife in the right side of her abdomen and PW-1 removed the knife from his wife's body. Thereafter his neighbour Laxman Waghmare arrived there who brought autorikshaw and both of them removed his wife to Rajawadi Hospital. Thereafter his neighbour Laxman Waghmare arrived there who brought autorikshaw and both of them removed his wife to Rajawadi Hospital. At the hospital, doctor examined her and declared dead before admission. He further stated that, on or about 12.10 p.m. PSI Koli along with five policemen of Sakinaka Police Station came to the Rajawadi hospital and recorded his statement which was treated as F.I.R. dated 23rd April, 1989 (Exh.5). 10. In cross-examination, he admitted that there was an agreement between himself and accused prior to the marriage that he would not leave his wife for the period of two years and would not go anywhere and he would look after the children of the accused while his wife was away in another country and during that period he would not go to his native place. He also admitted that accused and his wife asked him to give in writing about the said agreement. He further stated that the distance between his room and Amin's shop was about 80 to 100 feet. He further stated that his neighbours were watching TV Serial 'Mahabharat'. According to him, the lady who came to report him, was known to his wife by name. Moreover, there was some commotion when the lady came to report the matter to him. When he reached door of the house, the accused saw him and fled away and he found his wife was unconscious. He removed the knife from his wife's body and left it in the room. As regards PW-15 Mahananda Waghmare, he stated that he does not know whether the name of Laxman Waghmare's wife is Mahananda Waghmare. 11. That takes us to the testimony ofPW-15 Mahananda Waghmare i.e. another eye witness, who stated that she knew the accused whose name is Rajendra and he was residing in the room opposite to her house and he used to sell fish and he used to reside there along with his wife and sister-in-law and two children who were aged about two years and one year respectively. She also knew• complainant and his name is Bhaiya and he had married with Geeta and he was residing in the adjacent room. According to her, after marriage, Geeta started residing with complainant in his room. She stated that Geeta is no more and she was kil1ed by accused. She also knew• complainant and his name is Bhaiya and he had married with Geeta and he was residing in the adjacent room. According to her, after marriage, Geeta started residing with complainant in his room. She stated that Geeta is no more and she was kil1ed by accused. She further stated that, it was a Sunday on the date of the incident and at about 9.30 a.m. when she was taking tea, she heard some shout as "bachav" and she recognized the voice of Geeta, and therefore, she rushed towards Geeta's room and there was a court in front of Geeta's room, and therefore, she put it aside and saw that the accused was stabbing Geeta with a knife and Geeta was lying on the floor. On seeing her, the accused ran away out of the room. Thereafter she was swooned on seeing the blood in the room. After 10 to 15 minutes, when she regained consciousness, she saw the Geeta on the shoulder of his husband. The police personnel recorded her statement on the same day which was written in Marathi and it was read over and explained to her. She found many persons had assembled in front of the complainant's room. 12. In cross-examination, she stated that she was swooned after seeing the accused assaulting Geeta with a knife. She also stated that when she peeped into the door, the accused saw her and on seeing her, the accused left the room. She also stated that, it did not happen that she heard the voice of shouting "Mere ko Bachav" of one woman, but she heard the shout of Geeta. She also identified the knife (Article 3) in the Court, used while assaulting Geeta. 13. On perusal of both the said testimonies of eye witnesses PW-1 Shyam Prit and PW-15 Mahananda, it is curious to note that both the said eye witnesses do not refer to the presence of each other at the time and place of the occurrence of the incident. Pertinently, the testimony of PW-1 is silent in respect of presence of PW-15 at the time and at the place of the occurrence of the incident. So is the position of deposition of PW-15 Mahananda and there is no whisper in her deposition that PW1 Shyam Prit was present at the time and place of occurrence of the incident. Pertinently, the testimony of PW-1 is silent in respect of presence of PW-15 at the time and at the place of the occurrence of the incident. So is the position of deposition of PW-15 Mahananda and there is no whisper in her deposition that PW1 Shyam Prit was present at the time and place of occurrence of the incident. Hence, testimonies of both the said witness do not corroborate with each other and if the testimony of PW-I is believed, the testimony of PW- 15 Mahananda cannot be believed and vice-a-versa. If PW-15 is believed, PW-1 cannot be believed. Hence, suspicion is created in respect of both the said testimonies of PW-1 and PW-15, that whether they really witnessed the occurrence of the incident, and hence, their testimonies as eye witnesses come under the cloud of suspicion. It is also material to note that, although PW-l was resident of the said village, he was not aware whether PW-15 Mahananda was the wife of Lax man Waghmare who helped PW-1 to remove his wife to Rajawadi hospital and even he did not know the name of Laxman's wife that whether she is Mahananda Waghmare i.e. PW-15. Accordingly, there is no co-ordination in the said evidence of alleged eye witnesses adduced by the prosecution and the learned Trial Court rightly disbelieved the same. 14. That takes us to the testimony of other witnesses who are the residents of the said vicinity, namely, PW-6 Husseinsab Peersaheb Shaikh, PW -7 Shakuntala Shivkumar Tiwari, PW-8 Abdul Malang Shaikh and PW12 Chandrakant Shivlingappa Mali, who are the witnesses to the quarrel which took place on the evening prior to the occurrence of incident of alleged murder of victim Geeta and the testimonies of the said witnesses are on the same lines who narrated the prelude to the main incident, but their testimonies do not throw any light on the occurrence of the main incident of alleged murder of victim Geeta by the accused. 15. Coming to the medical evidence of PW-11 Dr. Vidyadhar Thenge, who stated that he was attached to Rajawadi Coroner's Court at the relevant time and the dead body of deceased Geeta was brought to the said Coronary Court on 23rdApril, 1989 at about 11.45 a. m. and he performed the postmortem thereon from 12.30 a.m. to 2.00 a.m. on 24th April, 1989. On external examination, he found the following injuries:- "1. On external examination, he found the following injuries:- "1. I. W. 4 cm x 2 cm as shown in the figure. 2. I.W. 5 cm x 2 cm as shown in the figure. 3. I. W. 4 cm x 1 cm as shown ion the figure. 4. I.W. 3½ cm as shown in the figure. 5. I.W. 7 cm x 2 cm as shown in the figure. 6. I.W. 5 cm x 2 cm as shown in the figure. 7. I.W.2½ cm x 1½ cm as shown in the figure. 8. I.W. 3 cm x 1 cm medial side of left elbow joint skin deep. 10. I. W. 2 cm x 1 cm on medial side of right writ joint. 11. I. W. 3 cm x ½ cm on tat side of right wrist joint skin deep. 12. I.W. 3 cm x 2 cm or right side of hip. 13. I.W. 3 cm x 2 cm at the base of left index finger. 14. Contusion 2 cm x ½ on sternum middle skin deep. Injury No.4 Passing downwards obliquely to right side cutting Diaphrgarm left lobe of liver, Dept. 10 cm. Injury No.6 Passing obliquely upwards cutting large intestine Depth. 11 cm. Injury No.2 Passing obliquely upwards cutting right lobe of liver. Depth 5½ cm. All the 14 injuries shown in the P/M notes, were correctly recorded. The injuries were all ante-mortem. Internal examination no injuries to head and scalp. The brain was Pallor. There were cut injuries to the walls ribs and cartilages. There was cut injury to ploura. The right lung was pale the left lung was pale. Heard was empty. There was cut injury to the Abdominal wall and peritoncym. There was one litre of blood in the abdominal cavity. Tongue was inside. Stomach was empty. Small intestine was empty. There was cut injury to large intestine with four round worms. There was cut injury to liver. Bladder was empty. The organs of generation were normal. Viscera sent (blood) for C.A. Spine was not open. Cause of death: Haemorrhagic shock due to injuries to internal organs (Un-natural) (shown Art. 3 knife) all the 14 injuries could have been caused with this knife. Produced the PM notes, they are in my handwriting, and signed by me, same are now taken on record and marked Exh.24." 16. Viscera sent (blood) for C.A. Spine was not open. Cause of death: Haemorrhagic shock due to injuries to internal organs (Un-natural) (shown Art. 3 knife) all the 14 injuries could have been caused with this knife. Produced the PM notes, they are in my handwriting, and signed by me, same are now taken on record and marked Exh.24." 16. In cross-examination, he stated that, besides injury No.8 and injury No.14, he has not given the depth of the other injuries. He also issued the postmortem notes which are produced at Exh.24. Accordingly, the cause of death of the victim is given as haemorrhagic shock due to injuries to internal organs (un-natural). Considering the testimony of PW-11, postmortem notes and inquest panchanama (Exh.9), we have no hesitation to hold that the victim Geeta met with the homicidal death (un-natural). 17. Turning to the evidence of seizure of clothes and articles, the scene of offence panchanama (Exh.7) was drawn in presence of PW-2 Ravan Patil and the blood sample lying on the place of the incident upon knife about 10 inches having wooden handle thereto and the other articles lying there, were seized there under and also the clothes of the accused were seized under the panchanama (Exh.11) in presence of PW-4 panch witness Shankar Rajbal and also the clothes of the complainant were taken charge of in presence of panch witness PW-5 Ramchandra Koli (Exh.30) and the same were sent to the Chemical Analyzer's office for examination purpose along with the forwarding letter (Exh.32 Collectively), and also the blood sample of the accused was sent to the Chemical Analyzer's office for examination purpose. The Chemical Analyzer's reports thereof were received (Exh.32 Collectively) and Exh.33. Pertinently, Chemical Analyzer's report of the blood sample of the accused (Exh.33) discloses the blood group of the accused as of "B" and the Chemical Analyzer's report of clothes of the victim discloses that blood of "B" group was found on the clothes of the victim, and admittedly, the accused has not been given any explanation in that respect. However, the sole incriminating circumstance which is in the form of corroborative piece of evidence, in the absence of clinching ocular evidence cannot form the basis of conviction against the accused and the observations made by the learned Trial Court in that respect do not appear to be out of place. 18. However, the sole incriminating circumstance which is in the form of corroborative piece of evidence, in the absence of clinching ocular evidence cannot form the basis of conviction against the accused and the observations made by the learned Trial Court in that respect do not appear to be out of place. 18. Moreover, it is also significant to note that the prosecution has not examined the lady who had been to Amin's shop and gave information to the complainant that his wife was being assaulted by the accused and even her name has not been disclosed by the prosecution and her evidence could have thrown light on the occurrence of the incident but the prosecution withheld the said material evidence and the said inaction also hampers the case of the prosecution. 19. In the circumstances, having the comprehensive view of the matter, we are of the considered opinion that, after scrutinizing and analyzing the evidence on record, the view adopted by the learned Trial Court while acquitting the accused is a possible view and the same does not appear to be perverse and the reasoning adopted there for also does not appear to be erroneous, and hence, no interference therein is called for in the present appeal, and therefore, present appeal deserves to be rejected. 20. In the result, we pass the following order :- ORDER Criminal Appeal No.73 of 1993 stands dismissed and the acquittal recorded against the respondent accused by judgment and order dated 16th September, 1992 rendered by the learned Additional Sessions Judge, Greater Bombay, stands confirmed and upheld. Appeal dismissed.