In this criminal appeal challenging conviction for robbery and murder, the High Court upheld the concurrent sentences of life imprisonment and rigorous imprisonment, dismissing the appeal as the evidence and recoveries pointed to the guilt of the accused.
Appeal dismissed, original conviction and sentence upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 614 OF 2003
Namdev Bhau Gare... Appellant
V/s
The State of Maharashtra
... Respondent
Ms. Smita Gaidhani, advocate appointed for the
appellant.
Mr. A.S. Shitole, A.P.P. for the State.
CORAM: D. G. DESHPANDE & SMT. NISHITA MHATRE, JJ.
DATED: 20TH MARCH, 2007.
ORAL JUDGMENT (PER SMT. MHATRE, J.):
1. By this appeal, the accused appellant challenges his
conviction and sentence under Sections 394 and 302 of
the Indian Penal Code. He has been convicted and
sentenced to suffer life imprisonment for the offence
punishable under Section 302 of the Indian Penal Code
and rigorous imprisonment for 10 years for the offence
punishable under Section 394 of the Indian Penal Code.
Both these sentences are to run concurrently. The
accused has been acquitted for the offence punishable
under Section 201 of the Indian Penal Code.
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2. The prosecution has alleged that on 14.5.2001 at
11.00 a.m., the accused robbed the victim Manjulabai of
her gold ornaments worth Rs.15,000/- by assaulting her.
This assault led to Manjulabai’s death. According to
the prosecution, the incident occurred in a forest when
Manjulabai was returning home after attending the pre-
nuptial ceremonies of the son of Kashinath at village
Suryamal. According to the prosecution, the accused
appellant who was also present at Kashinath’s house to
participate in the ceremonies left Kashinath’s house
together with Manjulabai at around 10.00 a.m.
Manjulabai did not return home that night. Her family
thought that she had spent the night at Kashinath’s
house at village Suryamal. When she did not return the
next morning, her husband and son looked for her.
Rohidas, her son, found her body in a ditch in the
forest and then lodged a police complaint. The accused
was arrested and chargesheeted under Sections 394, 302
and 201 of the Indian Penal Code. His trial was
committed to Sessions. The III Ad-hoc Additional
Sessions Judge, Thane has convicted the accused.
3. Eleven witnesses have been examined by the
prosecution in support of its case. PW-1 is the eye
witness to the incident. He has stated that on
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14.5.2001 he had taken his goats to graze in the
Balsunda jungle. At about 11.30 a.m. while he was in
the jungle, he heard a lady shout. According to this
witness, he saw the accused had caught hold of the
woman. There was a scuffle between them. The accused
then picked up a stone and beat the woman with it near
the ear and on the jaw. He then dragged the woman
towards the valley. The witness states that he returned
to his village and told several people but no one
believed him. The witness recognised the accused since
he had a grocery shop in the village. In the
cross-examination, this witness has stated that his
statement was recorded 3 to 4 days after the incident
and the police recorded his statements about 2 or 3
times. The last statement was recorded on 11.8.2001.
He has described the spot where the incident occurred.
He has also admitted that he was frightened when he saw
the incident. According to this witness, he saw the
incident from the distance of about 300 ft. and there
were about 10 to 15 mango trees between him and the spot
of the incident. Although he had reported the incident
to his mother Yamunabai, nobody believed him. This
witness has mentioned that the victim was dressed in a
blue nine yards saree.
4. The next witness who has been examined is Kashinath.
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This witness has stated that the ceremonies concluded at
about 9.00 a.m. in the morning on 14.5.2001 after which
the persons present had their meal and left at about
10.00 a.m. He has spoken about the presence of
Manjulabai and the accused in his house. This witness
has admitted in the cross-examination that he did not
know the exact time when Manjulabai or the accused left
his house. He has mentioned that Manjulabai and the
accused were first cousins, their mothers being sisters.
He has denied the suggestion that there was a dispute
over land between the families of Manjulabai and the
accused.
5. The next witness PW-3 examined is the panch witness
who has spoken about the inquest panchanama. He has
stated that the body was decomposed. This witness has
also proved the spot panchanama and the seizure
panchanama. He has spoken about the blood stains being
present on the dry leaves and on 2 or 3 stones at the
spot. Although broken pieces of bangles were found at
the spot, they were not seized according to this
witness. The victim’s slippers were also found near the
body.
6. The arrest panchanama has been proved by PW-4. The
accused was arrested on 24.5.2001 i.e. 10 days after
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the incident.
7. A pouch was found with the accused containing 7
keys. PW-5 was present at the victim’s house when the
police opened 4 locks with those keys. He has proved
the panchanama at Exh.15.
8. The medical officer has been examined as PW-6. The
post-mortem examination has been conducted at the spot
of the incident since the body had decomposed. He has
opined that the probable cause of death was "cardio
respiratory failure due to intracranial haemorrhage,
secondary to depressed fracture of right temporal bone."
The medical officer has stated that injuries could have
been caused by a blunt and hard object and that the
wounds had been inflicted about 72 hours earlier on the
victim. He has admitted that the fracture of the skull
could be possible because of a fall from a height on a
stone. The post-mortem examination indicates that the
death of the victim may have occurred about 12 to 14
hours after her last meal.
9. PW-7, another panch witness, has spoken about the
recovery made of the gold ornaments at the instance of
the accused. The recovery was made from the Balsunda
jungle. The gold ornaments were found buried near a
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tree. The accused also produced a pouch containing 7
keys which PW-5 has spoken about.
10. PW-8 is the victim’s husband. He learnt of the
incident from PW-9, his son. According to this witness,
he saw the dead body in the jungle but it was impossible
to see it from a distance of more than 15 ft. due to
the thick foliage.
11. PW-9 has stated that since his mother did not
return after the ceremonies at Kashinath’s house till
16.5.2001, he went to Suryamal village and enquired with
Kashinath who informed him that his mother had left
alongwith others including the accused. While returning
home, the witness states that there was a foul smell
emanating from a spot near the mango tree on the
boundary of the village. He found that it was his
mother’s corpse lying at that spot. The gold ornaments
that she had worn were missing.
12. Investigations have been carried out by PW-10 and
later by PW-11.
13. The learned advocate appearing for the accused has
criticised the testimony of the eye witness by
submitting that it is riddled with several contradictory
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statements. She questions the veracity of this witness
as according to her it would have been impossible for
anybody to see the incident and to identify the accused
from a distance of 300 ft. through a thickly wooded
jungle. She submits that it is impossible that from
this distance the witness would have been able to
identify the stone which was allegedly used by the
accused to kill the victim. The learned advocate also
questions the conduct of the police in recording the
statements of this witness two or three times and then
finally recorded the same on 11.8.2001 i.e. three
months after the incident. In our opinion, the
criticism of the learned advocate is unjustified. The
witness has spoken of the victim wearing a blue nine
yards saree. The inquest panchanama which has been
proved by PW-3 also mentions that the victim had worn a
blue nine yards saree. It is true that this witness
does not speak about the accused removing the gold
ornaments from the victim’s body or that he snatched her
ornaments before she died. However, this by itself
would not cast a doubt on the deposition of this
witness. The contradictions and the omissions contained
in the deposition are not material and do not adversely
affect his testimony. PW-1 is a natural witness and we
see no reason to disbelieve his testimony.
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14. The learned advocate for the accused submits that
PW-8 contradicted the testimony of PW-1 when he states
that it was impossible to see the body from a distance
of more than 15 ft. while PW-1 has stated that he could
see the incident from the distance of about 300 ft.
This, in our view, is not a major contradiction which
proves fatal to the case of the prosecution. Besides
the ocular evidence of PW-1 on record, there are other
factors which are incriminating. The clothes of the
deceased have been identified by PW-1. The inquest
panchanama shows that the body of the victim was found
clothed in a blue nine yard saree which PW-1 has spoken
about. Apart from this, the ornaments have been
recovered at the instance of the accused. The learned
advocate states that the value of these ornaments was
not such as would induce the accused who was running a
grocery shop in the village to stake his reputation.
She submits that the deceased and the accused were
cousins and he had no motive for killing the victim.
Although these submissions appear to be persuasive, we
are not inclined to accept them. The ocular testimony
of PW-1 is supported by the recoveries made and the
seizure of a pouch containing 7 keys, four of which
opened the locks in the victim’s house.
15. The learned advocate then submits that, if the
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post-mortem report is to be believed, then the victim
had not had a meal for 12 to 14 hours prior to her
death. She submits that, according to the prosecution,
the victim was killed at about 11.00 a.m. on 14.5.2001.
PW-2 has spoken of the persons who participated in the
ceremony having had a meal before leaving. She submits
that if this testimony is to be believed, then the
post-mortem report cannot be accepted. According to the
learned advocate, the prosecution has not been able to
prove its case beyond reasonable doubt. This submission
cannot be countenanced. There is no evidence that death
of the victim was instantaneous. PW-1 had seen the
accused assaulting the victim and inflicting injuries on
her. The possibility of the victim succumbing to the
injuries some time later cannot be ruled out.
16. In our view, the evidence of PW-1 coupled with the
recovery of gold ornaments at the instance of the
accused and the blood stained stone found at the spot,
all point to the guilt of the accused.
17. We have scrutinized the evidence on record and the
judgment impugned. We have independently drawn the same
conclusions as the Sessions Court. In this view of the
matter, we have no other alternative but to dismiss the
appeal.
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18. Appeal dismissed.
Fees of the learned advocate appointed for the
accused quantified at Rs.1,000/-.
(SMT. NISHITA MHATRE, J.)(D.G. DESHPANDE, J.)
2 issues framed by the court
Whether the challenge to the conviction and sentence under Sections 394 and 302 IPC should be accepted given the ocular testimony and recoveries.
Whether the contradictions in the eye witness testimony and the post-mortem report regarding time of death create reasonable doubt.
2 provisions across 1 enactments
Namdev Bhau Gare
The State of Maharashtra
D. G. Deshpande
Nishita Mhatre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court