Allowed

Anant Ramchandra Khandalkar v. the State of Maharashtra

Bombay HC9 Dec 2021APEAL/482/2012

Case brief

AI extract

What is this about?

The High Court of Bombay allowed an appeal against conviction for murder. The court held that a discrepancy between the accused's confession (wooden log) and recovered weapon (sickle), coupled with lack of corroboration and failure to put the sickle to the accused during trial, necessitated acquittal.

What did the court decide?

Conviction and sentence quashed; appellant acquitted of all charges and released forthwith; fine refunded if paid.

Anant Ramchandra Khandalkar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2021)

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Digitally signed by VARSHA VARSHA DEEPAK DEEPAK GAIKWAD GAIKWAD Date: 2021.12.09 14:43:20 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 482 OF 2012

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Anant Ramchandra Khandalkar}
Aged 45 years}
Add: Convict No. C/8669}Appellant
Central Prison, Nashik Road, Nashik}(orig. accused)

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Versus
The State of Maharashtra}Respondent

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Ms. Devyani Kulkarni appointed advocate for the appellant.
Ms. Geeta Mulekar – APP for the State.

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CORAM :SMT. SADHANA S. JADHAV & PRITHVIRAJ K. CHAVAN, JJ.

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RESERVED ON :SEPTEMBER 22, 2021. PRONOUNCED ON :DECEMBER 9, 2021.

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JUDGMENT :- (PER SADHANA S. JADHAV, J.)

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1.The appellant herein seeks exception to the judgment and
order dated 31st January 2011 passed by the Additional Sessions
Judge, Mangaon, District-Raigad in Sessions Case No. 21 of 2010, by
which the appellant has been convicted for the offence punishable
under section 302 of Indian Penal Code and is sentenced to undergo
Rigorous Imprisonment for life and to pay a fine of Rs. 1000/-(Rupees

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One Thousand Only), in default of payment of fine, to undergo
Rigorous Imprisonment for one year.

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2.Such of the facts necessary for the decision of this appeal is
as follows:-

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a) On 11th February 2010, one Dattatraya Anjarlekar
lodged a report at the police station alleging therein that the
appellant/accused stays in front of his house. He is a
Carpenter by profession. There used to be intermittent
quarrels between the spouses and it was the complainant
who used to pacify them. That the brothers of the accused
were aware of the intermittent quarrels between the
spouses. That the accused was addicted to alcohol and that
was the cause of the quarrel.

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b)That on 11th February 2010 at about 3.00 a.m.
Subhash, the brother of the accused approached the
complainant and informed him that the accused has
assaulted his wife and that she had sustained a bleeding
injury and is unconscious. The complainant rushed to the
house of the accused. The wife of the accused was lying in a
supine position. She had sustained a bleeding injury on her
head. Upon enquiry, the accused-Anant informed the
complainant that his wife had not served him dinner at night
and therefore, he assaulted her with a wooden log. The
complainant had taken the injured to the police station. The
accused had also accompanied the injured and complainant

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to the police station. The brothers of the accused had
accompanied them. She was referred to the Civil Hospital.
The Doctor opined that the injured has been assaulted with a
sharp weapon and that she should be taken to Mangaon
Civil Hospital. Hence, she was taken to Mangaon. She
succumbed to the injuries in transit hence she was declared
dead on admission and according to the doctor the injury
was caused by a sharp weapon.

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3.On the basis of the report, Crime No. 5 of 2010 was
registered at Mhasala Police Station for the offence punishable under
Section 302 of Indian Penal Code. At the trial, the prosecution has
examined 8 witnesses to bring home the guilt of the accused.

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4.The prosecution has placed implicit reliance upon the
evidence of three witnesses. PW.3, the complainant, PW. 4, Ganesh
Khandalkar, the son of the present appellant. PW.5, Santosh Jadhav,
the panch for spot panchnama. PW.6, Anant Pawar, the panch for
recovery of weapon. PW.7, Dr. Sumer Shirdhar, who has performed the
autopsy on the dead body of deceased- Anita and PW.8, IO, Prakash
Birajdar.

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5.The evidence of PW.3, Dattatraya Anjarlekar, the
complainant would show that he was informed by the brother of the
accused at about 3.00 a.m. that his brother had assaulted his sister-in-
law and that she was lying in a pool of blood. Upon enquiry, the
accused had disclosed that he had assaulted his wife with a wooden
log. That when the injured was being taken to the police station in the

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Auto-rickshaw of the son of PW.3. he was accompanied by the accused
also to the police station. They had taken the requisition letter from
the Police. It is pertinent to note that the evidence of PW.3 further goes
to show that the accused was detained in the police station. Thereafter,
PW.3 had lodged the report at the police station. On the basis of which,
the law was set in motion.

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6.The complainant has further deposed to the extent that
there was an extra judicial confession before him by the accused that
since his wife Anita had not provided food to him in the previous
night, there was a quarrel between the spouses.

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7.The prosecution has adduced the evidence of PW.4-Ganesh,
son of the accused and the deceased who was sleeping in the same
room at the the time of incident.

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8.The deposition of PW.4 would show that in the intervening
night of 10th February 2010 and 11th February 2010 at about 3.00 a.m.
he had heard his mother shouting as “aai ga mele”. Upon hearing the
cry, he had switched on his Torch and looked at his mother and noticed
that she had sustained a head injury and blood was oozing from the
injury. He saw his father seated next to his mother and was trembling.
PW.4 therefore, rushed to his uncle who was residing in the adjacent
room under the same roof and informed him that his father had
assaulted his mother with a wooden log due to which she has
sustained a bleeding injury. In his presence the accused had informed
the complainant– Anjarlekar that since his wife had not served him
food at night he assaulted her with a wooden plank and thereafter they

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had been to the hospital. He has further volunteered that they had a
sickle at home for being used for agricultural operation and that he
had used the same for domestic work also.

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9.It is elicited in the cross examination of PW.4 that when his
uncle Subhash had questioned him about his act the accused had
informed Subhash that he had not done anything. It is also admitted
that the accused was maintaining his family out of earnings from his
work as a carpenter but there used to be quarrels on flimsy ground and
the only bone of contention was that the accused was addicted to
alcohol and used to return home under the influence of alcohol.

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10.It is further admitted that on the day of incident the
accused was under the influence of alcohol. There is recovery of a
sickle at the instance of the accused under section 27 of the Indian
Evidence Act.

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11.The evidence of PW.7. Dr. Sumer Shirdhar indicates that
the injured was declared dead on admission. PW.7 was attached to Sub
Divisional Hospital, Mangaon. The injured was referred by Primary
Health Centre, Mhasale and the injured has died on the way.

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12.PW.7 had noticed 1) incise wound middle of vertex
horizontal cutting of skull bone, brain matter spread out, it was 7 cm
in length, depth was upto brain. 2) two small injuries like laceration,
found on left side of the chest. The postmortem report is at ‘Exhibit-
39’. Cause of death was “hemorrhagic shock due to head injury”. The
opinion of the Doctor is that the injury cause on the head is possible

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due to infliction of sickle with great force. According to him, there was
excessive bleeding from the head injury, during the time spent for
taking the injured to the police station to set the law in motion. It can
be said that injured did not get immediate medical aid.

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13.PW.8, Prakash Birajdar happens to be I.O. According to
him, the sickle was recovered at the instance of the accused house
from below a heap of wood and that the said sickle was stained with
blood.

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14.It is the case of the prosecution that it was PW.4 who was
the first person to see his mother injured and his father sitting next to
her. Thereafter, PW.4 had called upon his uncle to whom the accused
had candidly stated that he had not done anything. Moreover, the
conduct of the accused needs to be taken into consideration after the
incident. The accused had accompanied his injured wife and neighbour
along with his brother to the police station. On the basis of the
statement of the neighbour, the police had detained the accused. That
the accused had allegedly disclosed that he had assaulted his wife with
a wooden plank. However, the investigating agency has recovered a
sickle from the accused under section 27 of the Indian Evidence Act. In
fact, a wooden plank and a sickle are two different things.

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15.The sequence as brought on record by the prosecution is as
follows:

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a)PW.4 woke up at 3.00a.m. on hearing the cries of his
mother.

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b)Without asking any question to his father. PW.4
rushes to his uncle’s room and informs him that his father
has assaulted his mother.

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c)Subhash, the elder brother of the accused without
seeking any answer from his own brother rushes to the
house of his neighbour.

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16.Upon enquiry by the neighbour the accused discloses that
he assaulted his wife with a wooden log. Soon thereafter the accused
accompanies his neighbour to the police station. The police sends a
requisition letter to the hospital for examining the injured.
Unfortunately, the injured succumbed to the injuries on her way to the
hospital. The question is whether the weapon recovered is the weapon
of assault.

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17.It appears that the appellant was asked about the wooden
log, in question no. 7, in his statement under section 313 of Cr.P.C.
whereas a sickle was recovered after his arrest. Accused had disclosed
from the beginning that he had assaulted Anita with a wooden log but
what is recovered is a sickle.

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18.In these circumstances, it would be appropriate to rely
upon the judgment of the Hon’ble Apex Court in the case of Nar Singh
vs. State of Haryana1 in which the Apex Court has held as follows:-

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“It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as 1 (2015) 1 SCC 496

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to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration”.

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19.In the present case the disclosure by the accused is treated
as extra judicial confession made by the accused to his brother
Subhash and his neighbour Anjarlekar. Extra judicial confession in
itself is a weak piece of evidence. In any case, the extra judicial
confession is not corroborated by any material. It is a cardinal principle
that for an extra-judicial confession to be the basis of conviction it
should not suffer from any discrepancies or inherent improbabilities. In
the present case the extra-judicial confession is that the accused
assaulted with a wooden plank, but the injury sustained is by a sharp
weapon, as opined by the doctor and pursuant thereto there is a
recovery of a sickle. This is inherent improbability in the extra-judicial
confession.

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20. Looking at the sequence of events, it would be difficult to
hold that after the assault, the accused would have time to conceal the
sickle since he had accompanied his wife to the police station. The
prosecution has to travel a long distance between “may be” and “must
be”.

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21.In view of the above mentioned circumstances, the
appellant herein deserves to be acquitted by extending to him the
benefit of doubt. Hence we pass the following order:-

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ORDER

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i) The appeal is allowed.

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ii)The conviction and sentence imposed vide Judgment
and order dated 31st January 2011 passed by the
Additional Sessions Judge, Mangaon, District-Raigad in
Sessions Case No. 21 of 2010 is hereby quashed and set
aside.

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iii) The appellant is acquitted of all the charges levelled
against him.

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iv)The appellant be released forthwith, if not required in
any other case.

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v)Fine be refunded, if already paid.

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vi)The appeal is accordingly disposed of.

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22.We cannot part with the judgment without recording
appreciation of learned advocate, Ms. Devyani Kulkarni was appointed
in the present matter to espouse the cause of the appellant as it

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happens to be an appeal filed by the appellant, who is in custody. She has put in her best efforts to espouse the cause of the appellant. Hence, her professional fees are quantified as per rules to be paid to her by High Court Legal Aid Services Committee, Mumbai .

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 (PRITHVIRAJ K. CHAVAN, J)

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(SMT. SADHANA S. JADHAV, J)

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Anant Ramchandra Khandalkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Anant Ramchandra Khandalkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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