Summary of Judgement

The Judgement

(PER- A.S. GADKARI, J.):-

1) Appellant has impugned the Judgment and Order dated 19th June, 2015, passed in Sessions Case No.147 of 2014, by the learned Additional Sessions Judge, Khed-Rajgurunagar, District Pune, convicting him under Sections 302 and 201 of the Indian Penal Code (for short, I.P.C.) and sentenced to suffer rigorous imprisonment for life and to pay a total fine of Rs.6,000/-, in default of payment of fine to further suffer rigorous imprisonment for nine months.

2) Heard Dr. Warunjikar, learned Advocate appointed by Legal Aid Committee along with Advocate Mr. Aditya Kharkar for the Appellant and the learned A.P.P. Perused entire record.

3) The prosecution case in brief is as under:-

i) On 2nd February, 2012 at about 10.00 a.m. Mr. Suresh A. Sonavane (PW-4) had been to his field for irrigating onion crop. He saw two dead bodies, i.e. of a woman and a child, were lying in the filed just adjacent to his land. He therefore phoned the Police Patil of his village who in turn phoned to the Narayangaon Police Station.

ii) Mr. Khandu D. Salave (PW-2) received information on his mobile phone from Mr. Ramesh Ughade, an employee of Gram Panchayat Sakore, Taluka Junnar, District Pune that, near the Kukadi Left Canal, in the field of Anandababa G. Sonawane, two dead bodies, one of a female and another of a child aged about one and half years were lying. PW-2 went there and saw that, faces of the said dead bodies were crushed and disfigured with stone. When PW-2 was on his way to the Police Station, another Police Patil of village Nimgaonsava namely Anil Takasale met him. Mr. Anil Takasale had already received an information about the incident 2/12 and being a photographer, was asked to snap photographs. PW-2 went to Narayangaon Police Station and recorded his complaint. The same is treated as First Information Report (Exh-16).

iii) Mr. Jijaram T. Bhandalkar (PW-1) was the father of Rohini (deceased). The marriage of Rohini was performed on 16th May, 2005 with Appellant who is the son of sister of Jijaram. Out of their wedlock, Rohini had given birth to two sons and one daughter. The names of children of Appellant and Rohini are Ms. Tanuja, Master Harshad and Master Tushar. Their ages on the date of incident i.e. 2nd February, 2012 were approximately 5 years, 3 years and 1½ years respectively. Till the birth of two children, Appellant was treating Rohini well and after the birth of second son namely Tushar (deceased), he used to suspect the character and fidelity of Rohini. Appellant was addicted to play cards and liquor and used to assault Rohini by suspecting her character. On 30th June, 2011, Rohini had lodged complaint with Parner Police Station bearing N.C. No.662 of 2011 against the Appellant. Though PW-1 persuaded Appellant, he was continuously harassing Rohini.

iv) On 1st February, 2012 at about 6.00 p.m. PW-1 received a phone call from his daughter Rohini who told him that, her husband had consumed liquor and assaulted her. PW-1 then gave phone call to Appellant and told that, he would come at his house tomorrow to fetch Rohini to his home. On 2nd February, 2012 at about 8.30 a.m., PW-1 gave a phone call to xAppellant and asked him where was he? Appellant replied that, he was coming to Kalamb i.e. place of PW-1, on his motor-cycle along with Rohini and two sons. v) On his way to Kalamb, Appellant halted at the shop of Smt. Sangita M. Kasal (P.W. 5) for filing petrol in his motorbike. P.W.5 saw Appellant, and a woman accompanied with two boys. Thereafter they all went away on moterbike. vi) At about 12.00 noon, PW-1 returned to his house for taking meals. He asked his wife whether Rohini had come to their house, to which she replied in the negative. He thereafter again called Appellant, but his mobile phone was found to be switched off. He therefore called his sister and asked about Rohini. His sister told him that, Appellant and Rohini had left for Kalamb early in the morning. He then made inquiry with maternal uncle of Rohini, who told him that the dead bodies of one lady and a child were found and told him to come to Narayangaon Police Station to confirm the fact.

PW-1 went to Narayanagaon Police Station and identified dead bodies of Rohini and Tushar aged about one and half years. He noticed that, the face of Rohini was disfigured.

vii) The inquest punchanama (Exh-30) of the dead body of Rohini was conducted in presence of panch witness Jana Sudam Pansare (PW-6) and the inquest punchanama (Exh-32) of the dead body of Master Tushar was conducted in presence of panch witness Sudam Mahadu Pansare (PW

7) by the Investigating Officer Shankar Awatade (PW-12). PW-12 conducted Spot Panchanama (Exh-36) in presence of Rohidas B. Sonavane (PW-8). Investigating Officer seized a stone weighing about 15 to 20 kg., a knife, pieces of broken bangles and other articles from the scene of offence.

viii) The Investigating Officer (PW-12) sent dead bodies of Rohini and Master Tushar for conducting autopsy to Rural Hospital, Narayangaon. Dr. Nivuruti D. Survase (PW-9) conducted postmortem examination on the said two dead bodies. While conducting postmortem examination of Rohini he noticed crush injury over head and forehead with compressed fracture, frontal bilateral temporal and parietal bone, face was flat with compression, brain matter was coming out from skull vault and other injuries on her person.

While conducting postmortem examination of Master Tushar, P.W. 9 noticed various external and corresponding internal injuries. PW-9 opined that, the cause of injuries was due to hard and blunt object like big stone and the final cause of death was due to head injury with intracranial hemorrhage. He accordingly prepared postmortem reports bearing Exhs 39 and 40 respectively.

ix) During the course of investigation, Appellant was arrested with alleged incriminating material i.e. the clothes which he had worn at the time of crime and his motor-cycle on which he travelled, were seized in presence of PW-11 and PW-3 respectively. After receipt of Chemical Analyser’s Report (Exhibit Nos. 55 to 57) and completion of investigation, the investigating Officer (PW-12) submitted charge-sheet before the Judicial Magistrate, First Class, Junnar for the offence punishable under Sections 302 and 201 of the IPC. Learned J.M.F.C., Junnar committed the said case to the Court of Sessions as the offence under Section 302 of the IPC is exclusively triable by the said Court.

x) The trial Court framed charge below Exh-3. The said charge was read over and explained to the Appellant, to which he pleaded not guilty and claimed to be tried.

xi) The prosecution in support of its case has examined in all 12 witnesses. The statement of Appellant under Section 313 of the Code of Criminal Procedure (for short, “Cr.P.C.”) (Exh-62) was recorded. In his statement under Section 313 of Cr.P.C., in answer to question No.30, Appellant stated that, he would be filing written submissions and accordingly filed it (Exh-63) on 28th January, 2015. It is the defence of the Appellant that, he has been falsely implicated in this case by his father-inlaw. That, on the date of incident i.e. on 2nd February, 2012 his wife Rohini along with son Master Tushar left the house in the morning for going to his parents house. He and his daughter were present at the home. In the afternoon, PW-1 came along with police and took him to police station. Out of frustration and anger, his father-in-law (PW-1) has falsely implicated him in the present crime.

4) As noted earlier, the trial Court after hearing learned Advocates of both the sides, has convicted and sentenced the Appellant by the impugned Judgment and Order.

5) It be noted here that, the facts narrated in paragraph Nos. 3(i) to 3(ix) are derived from the testimonies of the concerned witnesses and reproduction of the same is avoided for the sake of brevity.

6) Prosecution case is based on circumstantial evidence and also on ocular evidence. The circumstantial evidence is based on the theory of ‘last seen together’ by Smt. Sangita Kasal (PW-5) and the ocular evidence is of Ms.Tanuja Mandale (PW-5), the daughter of Appellant, who as per the prosecution was also accompanying Rohini and Master Tushar on the date of incident. Record discloses that, P.W. 5 and P.W. 10 are the star witnesses of prosecution.

7) As noted earlier, PW-1 has deposed that, on 2nd February, 2012 at about 8.30 a.m. when he gave a phone call to the Appellant, he replied to him that he would be coming to Kalamb on his motor-cycle along with Rohini and his two sons. The deceased herein are Smt. Rohini and Tushar i.e. youngest son of the Appellant. The motive as propounded by the prosecution behind the commission of present crime is that, the Appellant was suspecting about the fidelity of Rohini and the said suspicion arisen and became stronger after the birth of Master Tushar.

8) Smt. Sangita Kasal (PW-5) has deposed that, she along with her husband used to run a grocery shop at Zapwadi, Taluka Junnar. On 2nd February, 2012, she opened her shop at 8.00 a.m. Between 8.00 a.m. to 9.00 a.m. one person, one woman along with ‘two boys’ came at her shop. The couple was pulling the motor-cycle. The man demanded petrol from her and thereafter all of them went away on motor-cycle. She has identified the Appellant as a person who had come to her shop on the day of incident.

8.1) In her cross-examination she has admitted that, on the day of incident, the Appellant along with a woman and ‘boys’ had come to her shop.

9) Ms. Tanuja Mandale, (PW-10), the daughter of Appellant who was aged about 5 years on the day of incident, has deposed that on the day of incident she along with her father, mother and Tushar were going on a motor-bike. That, her father killed her mother and brother Tushar with a stone.

9.1) In her cross-examination she admitted that, she and her elder brother Harshad are residing with her maternal uncle Mangesh. That, on the day of incident she had gone out of house with Tushar. She has categorically admitted that, on that day she herself, Harshad, her grandmother and her father Appellant were at home. That, on the said day, her mother and Tushar did not return to home. Thereafter, her grandfather (PW-1) came to their home with police. The police arrested her father and went away. She has admitted that, her grandfather (PW-1) took her and Harshad with him and since then they are residing with PW-1. PW-10 has denied the suggestion that, she has been tutored by her grandfather and maternal uncle therefore she was deposing against her father.

10) It is thus clear that, there is inconsistency with respect to the persons accompanying the Appellant on the alleged fateful day. PW-5 has specifically deposed that, she saw the Appellant with a woman (deceased) and ‘two boys’ with them. Prosecution has heavily relied upon the deposition of PW-5 who contends that, she is the witness who saw lastly the Appellant accompanying with both the deceased. If the Appellant had taken both the sons with him while going to the PW-1’s house, then how the other son Harshad came to be replaced by Ms. Tanuja (PW-10), who claims to be an eye-witness to the said incident, is an intriguing question which has not been answered by the prosecution. If the Appellant committed murder of Rohini and Tushar, then where he left Harshad is also a question, which is unanswered. There is another question, which the prosecution has not answered is that, if Tanuja (PW-10) was accompanying the Appellant at the relevant time and an eye-witness to the incident, then when Appellant along with Tanuja (PW-10) came back to home and who saw them together, as it is the consistent case of the prosecution that, the Appellant along with his wife and two sons left for going to the house of PW-1.

11) It appears to us that, PW-5 either is not telling entire truth to the Court or is a chance witness to connect the link of chain of circumstances to support the theory of ‘last seen together’ and none else. As noted earlier, PW-10 has admitted that on the said day of incident, her mother along with Tushar went out of the house and did not return. That, she herself along with her father, brother Harshad and grandmother were present at home.

It therefore clearly appears to us that, the presence of PW-10 at the scene of offence is very doubtful and in her cross-examination she has told the absolute truth to the Court. The other circumstances propounded by prosecution are corroborative and not substantive pieces of evidence.

12) Perusal of testimony of Tanuja (PW-10) and in particular her deposition in the cross-examination, inspires confidence in the mind of this Court. However, the testimony of PW-5 creates doubt about its trustworthiness. If the testimony of the P.W.10 is accepted as truthful, then it creates further doubt in our mind, as to whether the P.W.5 infact had seen the Appellant along with a woman and two boys at her shop on the day of incident. Though, PW-10 was a child witness, perusal of her testimony clearly indicates that, she was deposing absolute truth before the Court. As noted earlier, PW-10 has denied the suggestion that, she was tutored by PW-1.

13) It is the settled position of law that, when two views of a case are possible, the view which is beneficial to the accused is to be adopted. As noted above, the testimony of PW-10 inspires confidence in the mind of this Court and therefore it also creates shadow on the testimony of PW-5.

13.1) In view of the above, we are of the opinion that, the Appellant deserves to be given benefit of doubt and is accordingly given to him.

14) Hence the following Order:-

ORDER

(a) The impugned Judgment and Order dated 19th June, 2015, passed in Sessions Case No.147 of 2014 by the learned Additional Sessions Judge, Khed-Rajgurunagar, District Pune is quashed and set aside.

(b) Appellant is acquitted from all the charges framed against him in Sessions Case No.147 of 2014, by extending benefit of doubt to him.

(c) Appellant be released from jail immediately if not required in any other case/cases on production of authenticated copy of this Order.

(d) As per record, at the time of filing of the Appeal, the Appellant was lodged in Yerwada Central Prison, Pune. The Registrar (Judicial-II) is directed to communicate this Judgment and Order to the Superintendent Yerwada Central Prison, Pune.

(e) In case, the Appellant is shifted in any other prison from Yerwada Central Prison, Pune, the Superintendent of Yewada Central Prison, Pune is directed to communicate this Order to the Appellant in any other prison wherever he is presently lodged.

15) Before parting with the Judgment, we would like to place on record our appreciation for the efforts put in by Dr. Uday P. Warunjikar, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant, as he was thoroughly prepared in the matter and rendered proper assistance to the Court.