Allowed

Limbaji Raghunath Salgar v. the State of Maharashtra

Bombay HC26 Sept 2016APEAL/214/2013

Case brief

AI extract

What is this about?

In a criminal appeal challenging a murder conviction, the High Court allowed the appeal, holding that the prosecution failed to prove guilt beyond reasonable doubt due to lack of corroboration for the only witness and absence of physical evidence.

What did the court decide?

Criminal Appeal allowed; conviction and sentence quashed; appellant acquitted; set at liberty; fine refunded; bail bond ordered.

Limbaji Raghunath Salgar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 214 OF 2013

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Limbaji s/o Ranghnath Salgar,
Age : 52 years, Occu. Nil,
R/o Waghala, Tal. Parali (Vaijnath),APPELLANT
District Beed(Ori.Accused)

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VERSUS

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The State of Maharashtra,
through Police Inspector,
Police Station,
Parali (Vaijnath) (Rural),
Tal. Parali (Vaijnath),
District Beed RESPONDENT
 (Prosecution)

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Mr. V.D. Sapkal, Advocate holding for
Mr. L.C. Patil, Advocate for the appellant
Mr. A.R. Borulkar, A.P.P. for the respondent/State

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CORAM :S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
DATE : 26th September, 2016

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ORAL JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

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The appellant has challenged his conviction and
sentence for the offence punishable under Section 302 of

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the Indian Penal Code (for short, “I.P.C.”), recorded in
Sessions Case No. 83 of 2011 on 31st October, 2012 by the
learned 2nd Additional Sessions Judge, Ambajogai.

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criapl214-2013

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2.In short, it is the case of the respondent that
on 16th June, 2011 at about 8.45 a.m., the appellant
inflicted axe blows on the person of his wife namely
Laxmibai and caused her serious injuries to which she
succumbed. The said incident took place in the house
which was a part of a Wada (complex), situate at village
Waghala, Taluka Parli-Vaijnath, District Beed. After
hearing the commotion, the informant viz.:- Zumber
Sundarrao Salgar, who was the Police Patil of the
village, went to the house of the appellant. He saw the
appellant present there armed with an axe. The deceased
Laxmibai was lying on the ground. She had sustained
bleeding injuries on neck and face. On being asked by
the informant, the appellant told that the deceased
Laxmibai had gone to Pandharpur in the Dindi
(pilgrimage) in the previous year and since then, she
was not behaving properly and therefore, he killed her.
After getting that information, the informant firstly
communicated about the incident to the police on phone.
He further lodged a report in respect of that incident
on the basis of which Crime No. 86 of 2011 came to be
registered against the appellant for the above mentioned

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offence. The police prepared the panchanama of the
spot. The clothes of the appellant and the axe came to

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be seized. The inquest panchanama of the body of the
deceased Laxmibai was prepared. Her dead-body was
referred to the Medical Officer for postmortem. The
Medical Officer noticed three injuries on her person.

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He opined that she died of hemorrhagic shock secondary
to neck injury. The statements of the witnesses were
recorded. The seized articles were sent to the Chemical
Analyzer for analysis and report. After completion of

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the investigation, the appellant came to be

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chargesheeted for the above mentioned offence.

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3.The prosecution examined nine witnesses to

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bring home the guilt of the appellant. After evaluating
the evidence of the said witnesses, the learned Trial
Judge came to hold that the respondent established the
guilt of the appellant for the above mentioned offence
beyond reasonable doubt. He, therefore, convicted the
appellant for the said offence and sentenced him to
suffer imprisonment for life and to pay a fine of Rs.
2000/-. The said conviction and sentence have been

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challenged in the present appeal.

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4.The learned counsel for the appellant submits
that the case of the prosecution rests on the sole
testimony of the informant Zumbar Salgar who has deposed
in respect of the alleged extrajudicial confession given
by the appellant before him. He submits that the spot of
the incident is a complex of houses called Wada wherein
there are a number of houses, including that of the sons
of the appellant. A number of persons were present at
the time of the incident in that complex. Even when the
informant claims to have reached to the spot of
incident, a number of persons were already present
there. However, none of them supports the case of the
prosecution. None of the said witnesses has corroborated
the version of the informant on the point of presence of
the appellant at the spot of the incident as well as his
giving the extrajudicial confession. He submits that
except the evidence of the informant, there is no
substantial evidence to connect the appellant with the
incident in question. According to him, the evidence in
respect of extrajudicial confession is a very weak piece
of evidence in itself. Unless it is corroborated, it

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cannot form the basis of conviction. He points to the

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5 criapl214-2013

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evidence of other witnesses wherein they have attributed
animus on the part of the informant which prompted him
to lodge report and depose against the appellant.
According to them, the informant wanted to purchase the
land which was purchased by the appellant and therefore,
he had a grudge against the appellant. This, according
to him, is the reason for the informant to depose false
against the appellant. He submits that the findings
recorded by the learned Trial Judge are not consistent
with the evidence produced on record. He, therefore,
prays that the appellant may be acquitted of the offence
mentioned above.

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5. As against this, the learned A.P.P. submits

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that the evidence of the informant is most natural and
probable. He had no reason to speak false against the
appellant. It is supported by the medical evidence.
Moreover, the appellant being the husband of deceased

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Laxmibai was under an obligation to explain as to how
Laxmabai sustained injuries and died on the spot. He
submits that in absence of any explanation given by the
appellant, the conviction recorded against him for the
above mentioned offence cannot be said to be wrong or

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illegal.

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6.Dr. Pankaj Salgar (PW7), who conducted autopsy

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on the body of the deceased Laxmabai, found the
following three external injuries on the body of the
deceased Laxmibai.

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(i) Chop wound over upper part of neck, left side, laterally measuring 7 X 5 cm and underline bone deep, muscles and neck vessels cut.

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(ii) Incised wound over left angle of mandible, measuring 9 X 2 cm. of underlying bone deep. Angle of mandible, left, is fractured.

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(iii) Incised wound over forehead on left side 4 X 2 cm. Superficial tissue deep.

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He further states that there was bleeding from left eye
of the deceased Laxmibai. He opined that she died due
to hemorrhagic shock secondary to neck injury. He was

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shown the seized axe (Art.1) whereon he opined that the
injuries found on the body of the deceased Laxmibai were

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possible by that axe. It is not even suggested to
Dr.Salgar (PW7) that the injuries found on the body of
the deceased Laxmibai were either accidental or
suicidal. In the circumstances, in view of the evidence
of Dr. Salgar (PW7), the findings of the learned Trial
Judge that Laxmibai met with homicidal death will have
to be accepted and accordingly, accepted.

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7.The respondent is relying solely on the

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evidence of the informant recorded at Exh-12 to connect
the appellant with the death of Laxmibai. He deposes
that on 16th June, 2011 at about 8:30 a.m. to 8:40 p.m.,
when he was sitting in front of his house, he heard the
noise from the house of the appellant. Therefore, he
rushed to that house. He saw the wife of the appellant
namely Laxmibai lying as dead. There were injuries on
her face and neck. He saw the appellant present there.
There were blood stains on the axe as well as on the

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spot of the incident. On being asked by him, the

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appellant told him about the misbehaviour of the
deceased Laxmibai after her return from Dindi and
therefore, he finished her once for all. Thereafter, the
appellant went away towards Maruti temple. This witness

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further states that he informed about the incident to

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the Police Station Parli-Vaijinath on phone. The police
personnel came to the spot of the incident. He narrated
about that incident before the police. The police
recorded that information which came to be treated as
F.I.R. (Exh-19).

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8.From the above evidence, it is clear that the
informant was not the eye witness to the incident. He is
the witness on the point of extra-judicial confession
alleged to have been given by the appellant. The
principles which would make an extra-judicial confession
an admissible piece of evidence capable of forming the
basis of conviction of an accused have been summed up by
the Hon'ble Supreme Court as under:-

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(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution.

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(ii) It should be made voluntarily and should be truthful.

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(iii)It should inspire confidence.

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(iv)An extra-judicial confession attains greater
credibility and evidentiary value if it is
supported by a chain of cogent circumstances
and is further corroborated by other
prosecution evidence.

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(v)For an extra-judicial confession to be the
basis of conviction, it should not suffer from
any material discrepancies and inherent
improbabilities.

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(vi)Such statements essentially has to be proved
like any other fact and in accordance with law.

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9.It has come in the cross-examination of the
informant that the appellant has five sons, out of whom

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two are married and that all of them were residing
jointly with the appellant at the time of incident. He
further admits that there was only one dwelling house
belonging to the appellant. He further admits that near
the house where the incident took place, there were four

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families in the Wada, comprising of about twenty
persons. He then states that when he reached the spot of

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incident, many persons had already gathered there. It
is, thus, clear that the incident took place at the spot
where a number of persons including all the family

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members of the appellant were present and had an

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occasion to witness the incident.

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10.One Sonerao (PW3) (Exh-20), who is one of the
occupants of the Wada wherein the incident took place,
Sulenrao (PW4) (Exh-22), the son of the appellant,
Saraswatibai (PW5) (Exh-25), the neighbour of the
appellant and Sundarrao (PW6) (Exh-26), the person who
is residing at some distance from the house of the
appellant, have been examined by the prosecution.
However, none of them supports the case of the
respondent. In fact, they have denied the presence of
the appellant at his house at the time of the incident.

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11.Sonerao (PW3) states that there were seven

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families residing in the wada in which the appellant is
residing. There were about fifty persons residing in
those seven families, just adjacent to each other. It is

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thus clear that there were number of persons present at
the time of the incident. However, none of them states
that the appellant assaulted the deceased Laxmibai. None

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of them states that the appellant ever made any
statement before the informant, admitting the guilt of

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the offence of causing death of Laxmibai.

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12.When the sons of the appellant were residing in
the same house where the incident took place, it was
most natural and probable on their part to state about
the incident in question. There is nothing on record to
show that the appellant and the deceased Laxmibai were
residing in any separate room and that the incident took
place in that room. If that be so, it was not necessary
that the appellant should have explained the
circumstances under which the deceased Laxmibai
sustained the injuries. Moreover, the presence of the
appellant at the time of incident itself has not been
stated by the other witnesses, who, in the natural
course, were present nearby the spot of the incident. As
such, the version of the informant about the so-called
extra judicial confession of the appellant has remained
totally uncorroborated.

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13.It has come in the cross-examination of Sonerao
(PW3) that the relations between the informant and the
appellant were not good on account of purchase of the
agricultural land by the appellant, which the informant

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wanted to purchase. There is nothing on record to show

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as to why the appellant would disclose about the
incident to the informant only, more particularly, when
the relations between the informant and the appellant
were not good. As such, the evidence of the informant
in respect of the extra-judicial confession given by the
appellant before him cannot be attached with any
importance. It does not at all inspire confidence. If
the evidence of the informant is kept aside, there is
absolutely no evidence to connect the appellant with the
death of his wife – Laxmibai.

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14.Here, it may be mentioned that the clothes of

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the appellant came to be seized during the course of the
investigation. They were sent to the Chemical Analyzer
for examination and report. The Chemical Analyzer's
report (Exh-41) shows that the clothes of the appellant
(i.e. Art. Nos.5, 6, 7 and 8) were not at all stained
with blood. In the ordinary course, the clothes of the
appellant would have got stained with blood at the time
of the incident. The presence of blood stains on his

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clothes would have been a circumstance to establish
presence of the appellant at the spot of the incident

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13 criapl214-2013

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when it took place. The absence of blood stains on his
clothes also is a big impediment in the way of the
respondent in connecting the appellant with the incident
in question.

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15.As stated above, the evidence of the informant

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is not natural, probable and acceptable. There is no
corroboration to his evidence. There is no
circumstantial evidence to connect the appellant with
the incident in question. In the circumstances, the
prosecution cannot be said to have established the guilt
of the appellant for the offences of committing murder
of Laxmibai. Here, it will be worthwhile to reproduce
paragraph no.49 (j) of the impugned judgment, which
reads as under:

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“Here in this case prosecution have proved their
case from probability to possibility and more
than fifty percent of certainty. In that event
Accused is not entitled for benefit of doubt.”

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16.It is strange to note that the learned Trial
Judge tried to connect the appellant with the incident

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in question on the basis of probabilities and

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possibilities. Though he mentions that there is

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14 criapl214-2013

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possibility of involvement of the appellant in the
incident to the extent of more than 50%, still he makes
a contradictory statement that the benefit of doubt
cannot be extended to him. The entire judgment seems to
be based on surmises and conjectures. It is not based on
the legal and dependable evidence. In the circumstances,
the findings recorded by the learned Trial Judge holding
the appellant guilty for the above mentioned offence,
cannot be upheld.

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17.For the reasons recorded above, the conviction
recorded and sentence passed by the Trial Court against
the appellant cannot be said to be sustainable. The
respondent has failed to establish the guilt of the
appellant for the above mentioned offence. He deserves
to be acquitted of the said offence. In the result, we
pass the following order:-

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O R D E R

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(i)The Criminal Appeal is allowed.

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(ii)The judgment and order dated 31st October, 2012,

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passed by the 2nd Additional Sessions Judge, Ambajogai in

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Sessions Case No. 83 of 2011, convicting and sentencing

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the appellant for the offence punishable under section
302 of the Indian Penal Code are quashed and set aside.

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(iii)The appellant is acquitted of the offence

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punishable under section 302 of the Indian Penal Code.

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(iv)The appellant, who is in jail, be set at

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liberty forthwith, if not required in any other case.

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(v)The fine amount of Rs. 2000/-, if deposited by

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the appellant, be refunded to him.

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(vi)The appellant shall execute bail bond of Rs.
10,000/- (rupees ten thousand) with a surety in the like
amount before the trial Court vide section 437-A of the
Code of Criminal Procedure.

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[ SANGITRAO S. PATIL ] [S.S. SHINDE] JUDGE JUDGE

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npj/criapl214-2013

Limbaji Raghunath Salgar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Limbaji Raghunath Salgar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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