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2021 Supreme(Bom) 503
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, SURENDRA P. TAVADE, JJ.
Late Umesh Rajaram Samant, Through his legal heirs & Ors. - Appellants
Versus
The State of Maharashtra, through the Police Inspector - Respondent
Criminal Appeal No. 423 of 2013
Decided On : 23-12-2021
For the Appellant : Mr. Amit A. Mane a/w Mr. Sagar A. Mane i/b Mr. N.V. Bandiwadekar.
For the Respondent: Mr. S.S. Hulke, A.P.P.
Point of Law: Chemical Analyser’s report received by the Investigating Officer suggestive of blood stains of deceased on the clothes of accused is of no use, in absence of substantive piece of evidence on record.
Headnote:
Indian Penal Code, 1860 - Section 302 - Criminal Procedure Code, 1973 - Section 394, 164(5) - Punishment for murder - Abatement of appeal - Appellant and deceased were husband and wife - They were residing at Village incident is alleged to have taken place on a.m. at their residence at Village It is alleged by prosecution that appellant was working as Conductor in M.S.R.T.C. One a friend had come to appellant’s house on p.m. At that time appellant wife (deceased) and their children were in house while appellant was on duty at relevant time - It is stated by prosecution that said Mahesh slept at appellant house on during night time - It is alleged that on next day morning a.m. appellant/accused came home from his duty and after some time asked his wife who was cutting vegetables at relevant time as to why did she suppress fact that Mahesh had slept at their house on appellant dissatisfied by reply given by got annoyed and took out a scythe from place beneath TV and gave a blow on head of by means of said from back side - Mahesh, on seeing said incident fled to mango orchard - appellant caught hold of Mahesh and threatened him not to disclose incident to anyone else he would kill him like Vaishali - Whether there was a pressure of police upon him.
Finding of the Court: He further deposed that he had not seen the accused while beating on head of Vaishali by scythe from her back side - At time of happening of the incident, he was cutting woods in the jungle - Upon careful perusal of cross-examination of PW 1, it is abundantly clear that he has not supported prosecution case - It appears that after actual incident concerned Investigating Officer recorded his statement after 5 to 6 days - As deposed by PW 1 he had given said statement before police supporting prosecution case under threats given by police - Statement recorded before Magistrate was also under pressure of police - Court are of considered view that there is no substantive or direct piece of evidence to support prosecution case and prosecution case should fail - Chemical Analyser’s report received by Investigating Officer suggestive of blood stains of deceased on clothes of accused is of no use in absence of substantive piece of evidence on record - Except evidence of PW 1 discussed hereinabove, there is nothing brought on record to suggest that at relevant time of actual incident appellant was present in house - The prosecution examined Ghanshyam Vinayak Samant as PW2 - In his deposition, he stated that after completion of his routine work, when he was proceeding to his house, one Mr. Vitthal Madaye asked him to stop. He told PW 2 that something has happened to the wife of accused-Umesh. Thereafter, PW 2 and Vitthal went to the house of the accused. They saw that Vaishali was lying on the door of the kitchen. Blood was oozing from her injury. Accused-Umesh was there. He asked the accused as to how Vaishali suffered the injuries, in reply, he had stated that he was not aware how she had sustained the injuries, since he had been to jungle for bringing wood and he does not know anything about the incident. PW 2-Ghanshyam informed the police about the death of Vaishali and thereupon, FIR came to be registered.
Result: Appeal allowed disposed of.
JUDGMENT :
S.S. Shinde, J.
1. Heard learned counsel for the appellants and the learned A.P.P for the respondent-State.
2. By this appeal, the appellant/accused has challenged the judgment and order dated 12th March 2013 passed by the learned Additional Sessions Judge, Sindhudurg at Oros, in Sessions Case No. 18 of 2012. Vide the said judgment and order, the learned Additional Sessions Judge has convicted the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’) and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to suffer simple imprisonment for five months.
3. At the outset, it is necessary to mention that the appellant/accused, while undergoing the sentence, died on 29th November 2020, after pronouncement of the judgment and order by the Sessions Court. In normal course, upon death of appellant/accused, appeal would abate, however, in the present case, pursuant to the order dated 16th November 2021, the legal representatives of the appellant/accused i.e. daughter and son of the appellant/accused are brought on record, to pursue the appeal for the cause of justice, by invoking provision to Section 394 of the Cr.P.C.
4. The facts in brief as are necessary for deciding the appeal can briefly be stated as under:
The appellant and the deceased-Vaishali were husband and wife. They were residing at Village Parule Manjardewadi, Taluka Vengurla, District Sindhudurg. The incident is alleged to have taken place on 16th February 2012 at about 11:30 a.m. at their residence at Village Parule, Manjardewadi. It is alleged by the prosecution that the appellant/accused was working as Conductor in M.S.R.T.C. One Mahesh Gopal Madhav, a friend of the appellant/accused had come to the appellant’s house on 14th February 2012 at about 7:00 p.m. At that time, Vaishali, appellant/accused’s wife (deceased) and their children were in the house, while the appellant/accused was on duty at the relevant time. It is stated by the prosecution that said Mahesh Madhav slept at the appellant/accused’s house on 14th and 15th February 2012 during night time. It is alleged that on the next day morning i.e. on 16th February 2012 at about 11:30 a.m., the appellant/accused came home from his duty and after some time, asked his wife-Vaishali, who was cutting vegetables at the relevant time, as to why did she suppress the fact that Mahesh Madhav had slept at their house on 14th February 2012. The appellant/accused, dissatisfied by the reply given by Vaishali, got annoyed and took out a scythe (koyta) from the place beneath the TV and gave a blow on the head of Vaishali by means of said koyta from back side. Mahesh, on seeing the said incident, fled to the mango orchard. However, the appellant/accused caught hold of Mahesh and threatened him not to disclose the incident to anyone, else, he would kill him like Vaishali.
It is the case of the prosecution that on the day of incident, at about 1:00 p.m., one Ghanshyam @ Nilesh Vinayak Samant had been to the house of the appellant/accused and had seen that Vaishali was lying in a pool of blood in the kitchen room and some cut vegetables were lying near the body of Vaishali. The said Ghanshyam had asked the appellant/accused as to what happened, to which, appellant/accused replied that he did not know anything, as he had been to jungle to bring wood. At about 2:00 p.m., the said Ghanshyam brought Dr. Dipak Thakur at the house of the appellant/accused. The said doctor on examining Vaishali, declared her dead. It is the case of the prosecution that said Ghanshyam lodged a report against unknown person.
Pursuant to the report filed by Ghanshyam, a Crime No. 2/12 was registered against unknown person for the offence punishable under Sections 452, 454 and 302 of the IPC. During investigation, the appellant/accused was arrested on 17th February 2012. The clothes of the deceased were seized under panchanama; the spot panchanama o
