[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CONFIRMATION CASE NO. 3 OF 2007 [ Reference made by Additional Sessions Judge, Satara ] The State of Maharashtra ]..Appellant Vs. 1. Raghunath Ganpat ] Dhaigude ] ] 2. Thakubai Raghunath ] Dhaigude ]..Respondents [Ori.Accused] .... Ms.S.D.Shinde APP for Appellant-State Mr.Rajan Salvi Advocate (appointed) for the Respondents .... WITH CRIMINAL APPEAL NO. 736 OF 2007 1. Raghunath Ganpat ] Dhaigude ] ] 2. Thakubai Raghunath ] Dhaigude ]..Appellants [Ori.Accused] Vs. The State of Maharashtra ]..Respondent .... Mr.Rajan Salvi Advocate (appointed) for the Appellants Ms.S.D.Shinde APP for State .... [-2-] CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 07, 2008 : APRIL 07, 2008 : APRIL 07, 2008 ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] : ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] : ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] : 1. Both the above mentioned Confirmation Case and Appeal arise out of the judgment and order dated 29th November, 2006 in Sessions Case No.1 of 2002 passed by the learned Additional Sessions Judge at Satara. This is a case of double murder. By the said judgment and order, the learned Sessions Judge convicted both the accused for the offence under Section 302 read with Section 34 of IPC for murder of Dada Raghunath Dhaigude and sentenced them to death. So also, both the accused are convicted for the offence punishable under Section 302 read with Section 34 of IPC for committing murder of Kamalabai Raghunath Dhaigude and sentenced to death. 2. The prosecution case briefly stated is as under: . Accused No.1 Raghunath Dhaigude is the husband [-3-] of accused No.2 Thakubai. Thakubai is the second wife of accused no.1 Raghunath. Accused No.2 Thakubai started residing with accused No.1 at Malvasti, Sukhed, Dist. Satara. Kamalabai (deceased) was the first wife of accused no.1 Raghunath. She was his legally wedded wife. Deceased Dada was the son of accused no.1 Raghunath and deceased Kamalabai. Since about 4 to 5 months prior to the incident, Kamalabai along with her son Dada was residing in Malvasti in the agricultural land belonging to accused no.1 by constructing a temporary shed. Kamalabai was working as an agricultural labour and deceased Dada was working as cleaner on one tempo. Since Kamalabai and Dada started residing in the agricultural land of accused no.1, there used to be frequent quarrels between Kamalabai and her son Dada on one hand and the accused nos.1 and 2 on the other hand. There was dispute between them on account of partition of agricultural land. Deceased Dada and Kamalabai were demanding partition of agricultural land to accused no.1 Raghunath. However, Raghunath was not ready to partition his land. . The incident occurred on 29.8.2001 at about [-4-] 12.30 noon. Complainant P.W.4 Mohan Dhaigude was standing near land of Raghunath. Accused No.1 Raghunath and accused no.2 Thakubai were weeding in the land in which onion crop was standing. At that time, Dada entered into the agricultural land and quarrel started in between Dada on one hand and accused nos.1 and 2 on the other hand. There was scuffle between them and there was exchange of abuses. Raghunath then caught hold of Dada and gave blows of spade and stick to Dada. Dada sustained injuries on his head. This incident was witnessed by P.W.4 Mohan Dhaigude and P.W.9 Ashok Dhaigude. Thereafter, both the accused rushed to Kamalabai to kill her. At that time, accused Raghunath was armed with spade and accused Thakubai was armed with stick. Accused Raghunath gave a spade blow on the head of Kamalabai. Thakubai also gave stick blow on the head of Kamalabai. On account of this, Kamalabai became unconscious and fell down. In the meantime, P.W. 4 Mohan proceeded to Lonand Police Station and lodged his FIR. Thereafter investigation commenced. The bodies of Kamalabai and Dada were sent for post mortem. After completion of investigation, the charge sheet came to be filed. [-5-] 3. Charge came to be framed against the appellants-accused for the offence under Section 302 read with Section 34 of IPC for committing murder of Dada and again under Section 302 read with Section 34 of IPC for committing murder of Kamalabai. Both the accused pleaded not guilty and claimed to be tried. Their defence is of total denial and false implication. On going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated above. The learned Sessions Judge referred the said matter for confirmation to the High Court. Being aggrieved by the conviction and sentence, the appellant preferred above mentioned appeal. 4. We have heard the learned counsel for the appellants-accused and the learned APP for the State. We have also perused the judgment and order passed by the learned Sessions Judge as well as the record pertaining to the present case. After giving our anxious thought to the matter, we are of the opinion that the learned Sessions Judge has rightly convicted both the accused persons for the [-6-] offence under Section 302 of IPC. However, we are not inclined to confirm the death sentence imposed on both the accused persons, for the reasons mentioned herein below: 5. So far as the involvement of both the accused persons in the incident is concerned, we are satisfied that it has been established to the hilt through the credible ocular account rendered by three eye witnesses. The said eye witnesses are P.W.3 Rukhmini Kundlik Dhaigude, P.W.4 Mohan Ananda Dhaigude and P.W.9 Ashok Sahebrao Dhaigude. The incident has taken place in two parts. In the first part of the incident, Dada i.e. son of accused no.1 came to be murdered and in the second part, Kamalabai who was the wife of accused no.1, came to be murdered. The said incidents had taken place immediately one after another. P.W.4 Mohan and P.W.9 Ashok are the eye witnesses to the murder of Dada. P.W.3 Rukhmini is the eye witness to the murder of Kamalabai. We shall now proceed to examine the evidence of these three witnesses. 6. P.W.4 Mohan is the complainant in the present case. He has stated that accused no.1 Raghunath [-7-] had two wives. The first wife was Kamalabai (deceased). Dada (deceased) was the son of Kamalabai. Thereafter, accused no.1 Raghunath got married to accused no.2 Thakubai. Kamalabai and her son Dada were residing in the field of accused no.1 separately since about 4 to 5 months prior to the incident. There was quarrel in between both the accused persons on one hand and Kamalabai and Dada on the other hand on account of partition of land. Raghunath was not willing to effect the partition of his land as per demand of Kamalabai and her son Dada. On the day of the incident at about 1.00 p.m. quarrel was going on between Raghunath and Dada. Raghunath gave blows of stick and spade to Dada. Dada sustained injuries on his head and he fell down. At that time, P.W.9 Ashok Dhaigude was standing with Mohan Dhaigude. Ashok also witnessed the incident. The evidence of P.W.9 Ashok is one the same line as that of P.W.4 Mohan. Mohan and Ashok then went to Lonand on motor cycle to inform the police. On the way to Lonand, they met P.W.3 Rukhmini Kundalik Dhaigude and one Anjana. Rukhmini told them that Kamalabai was also assaulted. Thereafter, Mohan lodged his FIR. [-8-] 7. Both P.W.4 Mohan Dhaigude and P.W.9 Ashok have only witnessed the incident relating to assault on Dada and they had not witnessed the assault on Kamalabai. However, P.W.3 Rukhmini has witnessed the assault by both the accused persons on Kamalabai. P.W.3 Rukhmini has stated that there was dispute on account of partition of land in between accused Raghunath and his wife Kamalabai. Kamalabai’s son Dada was demanding partition of land from accused Raghunath, however, partition was not effected by Raghunath. She has stated that at about 1 p.m. she went to their field in Sutarki. Kamalabai was working there on daily wages. They all were weeding in the field. At about 1 p.m. Raghunath and his wife Thakubai came there and they asked Kamalabai whether her son Dada was allowed to rush towards them for killing them. Raghunath was armed with spade and Thakubai was armed with stick. Accused Raghunath gave a spade blow on the head of Kamalabai. Thakubai also gave stick blow on the head of Kamalabai. On account of this, Kamalabai became unconscious and fell down. 8. We have closely examined the ocular account of all these three witnesses. We find that their [-9-] evidence inspires confidence. The manner of assault as disclosed by these witnesses is corroborated by the external and internal injuries found on the person of Kamalabai and Dada. P.W.7 Dr.Sarode conducted the post mortem on the dead body of Dada. He found following injuries on the body of Dada: 1. C.L.W. over left scapular region 3 c.m. bone deep. 2. C.L.W. over right scapular region two and half cms. bone deep. 3. C.L.W. on left parietal region on head 3 cm. bone deep. 4. C.L.W. on occiput region 2 cm. bone deep. 5. Contusion below left ear, lemon size. 6. Contusion on right cheek 3 c.m. x half cm. 7. Fracture both scapula body, age of injury more than 24 hours. . He opined that cause of death of Dada Dhaigude was due to intrathoracic haemorrhage and injury to vital organs i.e. lungs and liver. Dr.Sarode has [-10-] opined that injuries can be possible by spade and injuries mentioned in the post mortem report in ordinary course, can cause death. 9. P.W.8 Dr.Shrikant Chandekar performed the post mortem on the dead body of Kamalabai. He found following injuries on her body: 1. Liner abrasions-Right forearm dorsum middle third oblique 1.2 cm. Right forearm medially Middle third, oblique 2 cm. 2. Right black eye. 3. Injection right mid-clavical region 4. Vertical oblique fracture of (right) mandible at 1st canine involving its total thickness. 5. Lacerated wound-right cheek, mid. 0.1 x 0.4 cm. vertical oblique, with anterosuperior abrasion 0.2 x 0.5 cm. Undertaking contusion present. 6. Transverse sutured lacerated wound 2 cm. anterior to right ear tragus 2 cm. underlying contusion present underlying right zygomatic arch and right maxilla [-11-] fractured into irregular pieces. 7. Sutured wound along right eyebrow 4 stitches 4 cm. long. 8. Stitched wound vertical over right forehead from right mid eyebrow going upwards 4 cm. stitched wound continues transversely oblique medially (from upper and to above mentioned wound) for 1 cm. Depressed fracture underlying the wound in an area 3 x 6 cm. involving right orbital upper edge and frontal bone. 9. Right frontoparietal stitched wounds-three in number-in form of 90 degree U shape, inverted, anterior vertical wound starting 7.5 cm. above right ear top, which is 5 cm. long. Transverse wound going backwards in 3 cm. long and posterior verticle wound is 4.5 cm. long edges of wound lacerated. Scalp shaved. 10. Right parieto occipital region shows lacerated stitched wounds 1.5 cm. and 2.00 joining each other in acute angle. 11. Contusion, right thing lower third 10 x [-12-] 15 cm. 12. Right shin contused middle third area completely. All above mentioned injuries were ante-mortem. . On internal examination of head of that dead body, he found following internal injuries: 1. Haematomas under scalp- Right front to parieto temporal 10 x 12 cm. Right temporal is muscle contused and right occiput 4 x 6 cm. 2. Fractures of scalp and facial bones were also mentioned in column No.17. 3. Olfactory plate, right orbital roof pituitary fossa showed crack fractures, right anterior base fractures. 4. Dura torn over right frontal lobe subdural haemorrhage all over, Brain was contused and lacerated right frontal look right parieto temporal lobes., cut section was haemorrhagic. . In the opinion of the Doctor, all the external and internal injuries were caused by blunt force. [-13-] All these injuries were sufficient to cause death in ordinary course. He has also stated that injuries could be caused by spade (article 2) as well as wooden stick (article 4). It is not anybody’s case that it is a case of accidental death. Looking to the injuries sustained by both the deceased persons, a case of homicidal death has been made out by the prosecution. As far as authorship of the injuries to both deceased persons is concerned, the same has been established through the ocular account of three eye witnesses which we have discussed in detail above. Nothing has been elicited in the cross examination of any of these three witnesses so as to disbelieve their testimony. We find their evidence to be credible and trustworthy and we have no hesitation in relying on the same. 10. Besides the ocular account of these three witnesses, there are some other circumstances which would go against the accused persons. Spade (article 27) came to be recovered at the instance of accused no.1. P.W.1 Mahesh is the panch relating to the recovery of iron spade (article 27). This witness has stated that accused had made [-14-] a statement that he would point out iron spade which is hidden by him. Accused thus led them to a stack of fodder. He then removed 10 to 15 bundles of fodder and then he pulled out the spade. Blood stains were noticed on the blade of the spade as well as handle of spade. This witness has not been shaken in his cross-examination. From the evidence of this witness, it is established that blood stained spade came to be recovered at the instance of the accused no.1. The said spade was sent to C.A. The C.A. report Exhibit 114 shows that spade had blood stains of "B’ group which is the blood group of deceased Dada. 11. Both the accused came to be arrested on the very same day on 29.8.2001. They came to be arrested at about 8.30 p.m. and the clothes on their person which were stained with blood came to be seized. Panch witness P.W.6 Jaikumar Bunage has deposed about the arrest of both the accused persons and seizure of the blood stained clothes which were on the person of both the accused. These clothes were sent to C.A. and the shirt, dhoti and bandi of accused no.1 were found to have human blood of "B" group. So also, saree, [-15-] petticoat and blouse of accused no.2 had blood stains of "B" group. We have earlier stated that blood group of deceased Dada was "B". Thus, this is an additional circumstance which would go against the accused persons. 12. In the present case, there are three eye witnesses to establish the involvement of both the accused in the crime. As there is direct evidence of eye witnesses, the motive to commit the murder would pale into insignificance. However, in the present case, the prosecution has proved the motive for the accused persons to commit the offence. The circumstance of motive would be an additional factor which would go against the accused persons. The witnesses have stated Kamalabai along with her son Dada was residing in the agricultural land belonging to accused no.1 by constructing a temporary shed. Kamalabai was working as an agricultural labour and deceased Dada was working as cleaner on one tempo. Since Kamalabai and Dada started residing in the agricultural land of accused no.1, there used to be frequent quarrels between Kamalabai and her son Dada on one hand and the accused nos.1 and 2 on the other hand. There [-16-] was dispute between them on account of partition of agricultural land. Deceased Dada and Kamalabai were demanding partition of agricultural land to accused no.1 Raghunath. However, Raghunath was not ready to partition his land. 13. After scanning the whole evidence threadbare, we have come to the conclusion that the trial Court was right in convicting both the accused persons for the offence under Section 302 read with Section 34 of IPC for causing death of Dada and Kamalabai. Now the only question which remains to be considered is that of sentence. 14. It was argued by Mr.Salvi on behalf of defence that the accused persons cannot be sentenced to capital punishment as this is not rarest of rare case as held by the Supreme Court in various decisions. It was also contended on behalf of accused no.1 that he is 68 years of age and he is suffering from many medical problems including severe arthritis. As far as accused no.2 is concerned, it is stated that she is a lady and she has two children. Taking all these facts into consideration, according to the defence, this is [-17-] not a case to impose capital punishment. Mr.Salvi submitted that society will be adequately vindicated if the accused are sentenced to suffer life imprisonment. 15. Lastly, it was submitted on behalf of defence that taking all the facts and circumstances into consideration, the sentence of life imprisonment will be adequate sentence to meet the ends of justice. 16. On the other hand, Ms.S.D.Shinde, the learned APP appearing for the State contended that in view of the several circumstances referred to by the trial Court, this is a case wherein in the interest of justice, capital punishment must be given. 17. We have heard the rival contentions of the learned counsel for both sides at length. We have also gone through the relevant case laws relied upon by both the sides. The learned APP has submitted that the accused persons have wiped out one entire side of the family i.e. first wife of accused no.1 and Dada who was the son of first wife and accused no.1. She has submitted that where [-18-] entire family has been wiped out as has been done in the present case, the accused persons would only deserve the death sentence. In support of her contention she has placed reliance on the decision in the Case of Ranjit Singh and another Vs. State Ranjit Singh and another Vs. State Ranjit Singh and another Vs. State of Rajasthan; AIR 1988 S.C. 672 of Rajasthan; AIR 1988 S.C. 672 of Rajasthan; AIR 1988 S.C. 672. We have carefully perused the said decision. No doubt, in the said case, the Supreme Court observed that death sentence would be appropriate as the entire family had been wiped out. However, we have noticed that in the said case, entire family consists of eight persons. In the said case, the father, mother, their son and five daughters were done to death. Out of the eight persons, some were minor children. Moreover, the accused persons entered the house of the victims when they were fast sleep and thereafter caused death of these eight persons who were sleeping. The accused persons had entered into the house of the victims armed with deadly weapons with pre-determination to kill all the persons in the house. However, in the present case, it is seen that quarrel had erupted between Dada and accused no.1 and during the course of that quarrel accused no.1 had inflicted blows on Dada and thereafter they went to the mother of Dada [-19-] and demanded explanation whether Dada was allowed to rush upon them for killing them and thereafter Kamalabai came to be murdered. The facts in the present case and the decision relied upon are entirely different. Hence, the said decision would not apply to the facts of the present case. 18. Thereafter, the learned APP has placed reliance on the decision of this Court in the case of Sham @ Kishor Bhaskarrao Matkari Vs. State of Sham @ Kishor Bhaskarrao Matkari Vs. State of Sham @ Kishor Bhaskarrao Matkari Vs. State of Maharashtra; 2006 ALL MR (Cri.) 1879. Maharashtra; 2006 ALL MR (Cri.) 1879. Maharashtra; 2006 ALL MR (Cri.) 1879. The learned APP has submitted that in the said case accused persons wiped out a family that too for very trivial dispute over property and this Court held that death sentence would be appropriate sentence in the said case. In the said case, we find that there are three murders committed by the accused, two out of them were helpless children. Moreover, the accused persons entered into the house of victims at mid night when the victims were fast sleep. The victims were unaware and they were in helpless and defenceless state. It is seen that accused persons did not even spare small children who had not given the slightest provocation to the accused persons to assault them. The accused were [-20-] not deterred because of the tender age of the children. In such case, this Court confirmed the death sentence. We reiterate that in the present case, two murders were committed and the accused persons had not attacked the deceased when they were asleep. In fact, the assault took place during broad day light. Here none of the deceased were minors. This case is also distinguishable on facts, hence, it would be of no help to the prosecution. 19. On the other hand, Mr.Salvi has placed reliance on the decision of this Court in the case of State of Maharashtra Vs. Vijay Kashinath Raut State of Maharashtra Vs. Vijay Kashinath Raut State of Maharashtra Vs. Vijay Kashinath Raut and others; 2005(1) Bom.C.R. (Cri.) 805. and others; 2005(1) Bom.C.R. (Cri.) 805. and others; 2005(1) Bom.C.R. (Cri.) 805. Mr.Salvi submitted that in the said case, four persons had been murdered. It was a case of family feud over possession of immovable property. There also incident took place during sudden quarrel and thereafter, the victims came to be assaulted. This Court held that the case would not fall under rarest of rare cases and this Court held that it is not a case to award death sentence. The facts in the case of Vijay Raut (supra) Vijay Raut (supra) Vijay Raut (supra) and the facts in the present case are similar. Hence, looking to this [-21-] fact, we are not inclined to confirm the sentence of death imposed on the appellants. Moreover, it is seen that appellant No.1 Raghunath is over 68 years of age and he has various medical problems including severe arthritis. The appellants were present in the Court during the hearing of this matter and we had occasion to watch the appellant No.1 Raghunath. We found that he was in excruciating pain and he had great difficulty in walking. As far as appellant No.2 Thakubai is concerned, she is a lady and she has two children. There is no one to look after the children as both the husband and wife are in jail. Looking to these facts and the decision in the case of Vijay Raut (supra), we do not find that this is a fit case to confirm the death sentence. 20. In the circumstances, although we do not confirm the death sentence imposed on the appellants-accused, the conviction of both the appellants under Section 302 read with Section 34 of IPC for committing murder of Dada and for the offence under Section 302 read with Section 34 of IPC for committing murder of Kamalabai is confirmed. The death sentence in respect of both [-22-] the appellants for both the offences shall stand altered to imprisonment for life. The sentence of imprisonment for life in respect of both the the appellants, shall run concurrently. 21. The reference is answered accordingly. Appeal preferred by both the appellants is partly allowed in the above terms. [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.]