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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.177 OF 2010
Ishwar Sampatrao Kadam
Age 21 years, Occ. Agriculturist
R/o Dhanora, Post Hasti Pimpalgaon,
Dist. Jalna
(In jail Yerwada Pune) … Appellant
vs.
The State of Maharashtra
(Shikrapur Police Station)
(C.R.No.81 of 2006) … Respondent
Mr. Pramod R. Arjunwadkar for the Appellant.
Mr. Rajan Salvi, APP for the Respondent/State.
Coram : A.A. Sayed
Sarang V. Kotwal, JJ.
Date : 29 September 2017
JUDGMENT (per SARANG V. KOTWAL, J.) :
1 The present Appeal is filed by the Appellant who was the original
Accused No.2 in Sessions Case No.362 of 2007 before the Additional
Sessions Judge-2, Pune. Alongwith the present Appellant there were
three other accused namely, Sampatrao Dagadoba Kadam who is the
father of the present Appellant, Chatrabhuj Sampatrao Kadam and
Babasaheb Sampatrao Kadam who were the brothers of the Appellant.
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At the conclusion of the trial the Appellant i.e. Accused No.2 was
convicted for the offence punishable under sections 302, 201 and 404
of the Indian Penal Code. The Appellant was sentenced to suffer
Rigorous Imprisonment for life and to pay a fine of Rs.1,000/- and in
default to suffer Rigorous Imprisonment for three months for the
offence punishable under section 302 of Indian Penal Code. The
Appellant was further convicted for the offence punishable under
section 201 of the Indian Penal Code and was sentenced to suffer
Rigorous Imprisonment for three years and was directed to pay a fine
of Rs.1,000/- and in default to suffer Rigorous Imprisonment for three
months. The Appellant was also convicted for the offence punishable
under section 404 of the Indian Penal Code and he was sentenced to
suffer Rigorous Imprisonment for one year and to pay a fine of
Rs.1,000/- and in default of payment of fine to suffer Rigorous
Imprisonment for three months. The Appellant was acquitted from the
charges of commission of offence punishable under sections 498A and
304B read with section 34 of the Indian Penal Code. The other
accused were charged for commission of offence punishable under
sections 498A and 304B read with section 34 of the Indian Penal Code
and they were acquired from the said charges. By way of the present
Appeal the Appellant is challenging the said impugned judgment and
order dated 15th January 2010 passed by the Additional Sessions
Judge-2, Pune in Sessions Case No.362 of 2007.
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2 The prosecution case is in respect of murder of the Appellant’s
wife Gangubai who went missing from 13 th May 2006 and her dead
body was found floating in a well on 19th May 2006. Initially a Complaint
that Gangubai was missing was lodged by the Appellant himself before
the police on 15th May 2006. He had mentioned that on 13th May 2006
he himself and his wife Gangubai were working in sugarcane field of
one Mr. Kautkar. In the afternoon Gangubai expressed that she wanted
to go home and therefore she left from there. According to the
Appellant, he went home after his work in the evening but did not see
his wife Gangubai. Thereafter, he made search for her and on 15 th May
2006 he gave his Complaint with Shikrapur police station regarding
missing of his wife.
3 On 19th May 2006, her dead body was found floating in a well
belonging to one Bapu Dagadu Borate. A stone was tied to her saree.
The police with the help of local people took out the dead body. The
dead body was identified as being that of Appellant’s wife Gangubai.
On 20 May 2006 an FIR was lodged by the paternal uncle of the
deceased Gangubai which was registered vide C.R. No.81 of 2006 at
Shikrapur police station, District Pune, under sections 302, 498A, 201
read with section 34 of the Indian Penal Code. He had made
allegations that the Appellant and his co-accused were demanding
money from the parents of Gangubai and on that count she was being
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harassed. It was his further case that the Appellant was suspecting
Gangubai’s character and therefore, committed her murder. The post-
mortem examination conducted on the dead body shows that
Gangubai had died because of throttling. On these allegations
Gangubai’s uncle Ambadas Tirukhe lodged his FIR. Thereafter,
investigation was carried out. The Appellant and his co-accused were
arrested and as per the prosecution case, on 21 st May 2006 at the
instance of the present Appellant, some ornaments belonging to
deceased Gangubai were recovered from a heap of stones in the
nearby field. As per the prosecution case, the Appellant showed the
spot where the murder was committed and from where the dead body
was dragged to the well belonging to Bapu Borate. It was thrown in the
water with a heavy stone tied to the saree. The investigation was
carried out and the charge-sheet was filed in the Court of Judicial
Magistrate First Class, Ghodnadi (Shirur) and thereafter, the case was
committed to the Court of Sessions at Pune.
4 The charges were framed against the Accused. The main charge
against the present Appellant was framed under section 302 of the
Indian Penal Code. The charge under section 304B read with section
34 of the Indian Penal Code was framed against all the Accused. In
addition to that, charge under section 404 of the lndian Penal Code
was framed against the Appellant. All the Accused pleaded not guilty to
the charges and claimed to be tried.
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5 During the trial the prosecution has examined six witnesses.
P.W.1 Ambadas Tirukhe was the uncle of the deceased who was
lodged the FIR which was exhibited vide Exhibit 32 during the trial. PW
2 Machhindra Masalkar was one of the panchas in whose presence the
ornaments were allegedly recovered at the instance of the present
Appellant and in his presence the Appellant allegedly shown the spot
where the offence was committed.
6 PW3 Bapu Borate was the owner of the well in which the dead
body was found floating. PW4 Dr. Shantilal Kamate had conducted
post mortem examination and he had found four injuries on her person
as follows:
1) Lacerated wound on right leg, lateral border of foot near 4 th and
5th toe eaten by animal, measuring 25 x 3 cm.
2) Both upper and lower ribs were eaten by maggots and insects.
3i) Fracture of hyoid bone.
4) Fracture of larynges, cartilages.
The first two injuries were post mortem injuries and injury nos.3 and 4
were ante mortem. In his opinion, the cause of death was “asphyxia
due to throttling’
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7 PW5 Police Inspector Shri Ashokkumar Kshirasagar had
conducted the investigation. PW6 Constable Shri Sultan Shaikh had
made investigation into the Missing Complaint No.13 of 2006 of
Shikranpur Police Station which was lodged by the Appellant in respect
of missing of his wife.
8 We have heard Shri Pramod Arjunwadkar for the Appellant and
Shri Rajan Salvi, APP for the Prosecution and with their assistance we
have gone through the entire evidence.
9 Shri Salve learned APP had pointed out that there were number
of incriminating circumstances against the present Appellant which
were rightly considered by the trial Court. He has summarized those
circumstances as follows:
1) There was an extra-judicial confession made by the Appellant in
presence of PW1 Ambadas.
2) The Appellant was last seen with the deceased Gangubai.
3) Recovery of ornaments belonging to the deceased at his
instance and the spot of incident having been shown by the
Appellant.
4) The motive of demand of money.5) Lodging of false report by the Appellant and the strained relations
between the couple.
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k 7/12 205 cri apeal 177.10 as.doc10 Shri Arjunwadkar, learned Counsel for the Appellant dealt with all
these circumstances separately and has submitted that none of the
circumstances is proved by the prosecution beyond reasonable doubt.
11 As far as the first circumstance of extra-judicial confession is
concerned, the PW1 has stated that when he had reached the police
station for lodging the FIR, the Appellant was present in the police
station and in his presence he made confession to the Police Sub
Inspector that he had committed murder of his wife by throttling, as he
thought she had become pregnant and he further admitted having
thrown the dead body in the well. This witness PW1 in his cross-
examination has categorically admitted that the Appellant was in the
custody of the police when he had reached there. Therefore, even
though the Appellant was formally arrested at about 6 p.m. on 20 th May
2006, when this witness PW1 had lodged his FIR at about 3.15 p.m.,
the Appellant was already in the custody of the police. Therefore, such
confession cannot be held to be admissible in view of bar of section 25
and 26 of the Indian Evidence Act. Therefore, we cannot take this
alleged confession into account.
12 The motive brought out by the prosecution that the Appellant and
his co-accused were demanding money from the parents of the
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witness did not have any personal knowledge that the deceased was
harassed by the Appellant as the demand of money was not made. He
has stated that the marriage took place between the Appellant and the
deceased on 19th February 2006 and after one month of marriage the
original Accused Nos.1 and 4 had come to their house and demanded
Rs.20,000/- for running a grocery shop. This witness and the father of
the deceased had expressed their inability to give the amount. After 7
to 8 days another brother-in-law of the deceased Gangubai had made
the said demand and had threatened him, however, there is no
evidence to show that the Appellant himself had demanded any money
and that the Appellant had ever harassed the deceased Gangubai on
that count. PW1 Ambadas did not have any personal knowledge about
such harassment and therefore even the motive is not proved by the
prosecution. After the missing Complaint was lodged it was enquired
into but the father of the deceased had admittedly not made any
grievance against the Appellant.
13 Shri Salve, APP pointed out that the Appellant was last seen
together with the deceased on 13th May 2006. The prosecution has not
examined any witness who could have deposed that the Appellant was
last seen in the company of the deceased on 13 th May 2006. However,
the fact remains that the Appellant himself has lodged the Complaint
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that both of them were together till the afternoon of 13 th May 2006.
However, even this circumstance is not incriminating against the
Appellant because the dead body was found on 19 th May 2006 and
there is no proximity of time when they were together and the point of
time when the body was discovered. Therefore even this circumstance
is not incriminating against the Appellant.
14 The conduct of the Appellant does not appear to be unnatural. If
in fact the deceased had gone missing from 13th May 2006, after
making initial search he lodged the Complaint with the police on 15 th
May 2006 and this action on his part appears to be normal and natural.
There was nothing unnatural or false about the lodging of the
Complaint on 15th May 2006.
15 The most important circumstances in this case is the recovery of
ornaments at the instance of the Appellant, and the Appellant showing
the spot of incident where there were signs of struggle. In this
connection, the prosecution has examined PW2 Machhindra Masalkar
who was the panch to this panchanama. Memorandum and Seizure
Panchanama are exhibited vide Exhibits 41 and 42. According to him,
on 21 May 2006 he was called at Shikrapur police station, at that time
the Appellant was present in the police station and he had shown
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ornament) and silver 'Payal' were concealed by him under a stone near
the well. He had also shown willingness to show the spot where the
murder was committed and from where the body was dragged to the
well. This witness has further deposed as to how the Appellant led
them near the well and on the spot from where he produced the
ornaments. He has further deposed that thereafter they walked about
1000 feet towards northern side of the spot and at that time the
Appellant allegedly showed the place where he was sitting with his
wife. This witness has deposed that there was a standing sugarcane
crop and it was found displaced and pressed. At some distance a pair
of footwear was found and seized and one more silver Payal was
found. This witness has further deposed that there were signs that
something was dragged from the spot. This witness had also
mentioned that green colour bangles were scattered at the spot.
According to this witness, the Appellant took them to the well belonging
to Bapu Borate. The prosecution relies heavily on this evidence. It is
rightly submitted by Mr. Arjunwadkar, learned Counsel for the Appellant
that the panchanama was carried out on 21st May 2006 i.e. after about
eight days from the alleged date of incident dated 13 th May 2006
therefore, it was impossible that the signs showing dragging of the
body still being seen after so many days. He has submitted that the
signs of dragging may not conclusively point to the dragging of the
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all over.
16 More importantly Shri Arjunwadkar invited our attention to the
cross-examination of Police Inspector Shri Kshirasagar who was the
Investigating Officer of the said case. He has categorically admitted
that when the remand report dated 26th May 2006 was submitted to the
Court there was no mention about the articles having been recovered
at the instance of the present Appellant. We find that this admission
goes a long way and throws considerable doubt on the prosecution
case in respect of the recovery of the ornaments at the instance of the
present Appellant. This was the main circumstance on which the
prosecution has relied. The prosecution had to prove it beyond all
reasonable doubt. We are of the opinion that the defence has been
successfully enough to throw sufficient doubt on such recovery and
therefore, we are unable to place much reliance on such recovery to
record the finding of guilty against the Appellant. Even after finding of
those ornaments, those ornaments were not identified either by PW1 or
any other witness as the ornaments belonging to the deceased.
17 Thus taking overall view of the matter, we are of the opinion that
the prosecution does not prove any of the circumstances beyond
reasonable doubt. The prosecution has failed to form complete chain of
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not proved the chain of the circumstances, consistent only with the guilt
of the accused and has failed to rule out the hypothesis of his
innocence. In the circumstances, we find that the finding recorded by
the learned trial Judge is not correct. Hence, the following order:
ORDER
i) The Appeal is allowed.
ii) The judgment and order dated 15 January 2010 of the conviction
and the sentence recorded against the present Appellant by the
Additional Sessions Judge-2, Pune, in Sessions Case No.362 of 2007,
are hereby set aside and the Appellant is acquitted of all the charges.
iii) The Appellant is in jail. He shall be released forthwith if not
required in any other case.
iv) The Appeal is disposed off accordingly.(Sarang V. Kotwal, J.) (A.A. Sayed, J.)
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