Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 223 OF 2012
Ghanshyam s/o. Masaji Jondhale,
Age Major Yrs., Occu. Nil,
R/o. Jaibhim Nagar, Nanded,
Tq. & Dist. Nanded APPELLANT
[Orig. Complainant]
VERSUS
The State of Maharashtra,
Through Police Station
Vazirabad, Nanded,
Tq. & Dist. Nanded RESPONDENT
...
Mr. Shriniwas Kulkarni, Advocate for the Appellant
Mr. A.V.Deshmukh, APP for the Respondent – State
...
CORAM : S.S. SHINDE &
A.I.S.CHEEMA, JJ.
Date of Judgment: 06.07.2015
JUDGMENT [Per S.S.Shinde, J.]:
1] This Criminal Appeal is filed by the Appellant
[original accused], challenging the Judgment and Order
dated 25.11.2011 passed by the learned Additional
Sessions Judge-1, Nanded in Sessions Case No. 217 of
2007, thereby convicting the appellant for the offence
punishable under Section 302 of Indian Penal Code for the
murder of Gayabai and Sunita and sentenced to suffer life
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imprisonment, which shall not be less than 28 years of
actual jail sentence, meaning that the accused should
remain in jail for minimum 28 years and to pay a fine of
Rs.1000/-, in default to suffer another one year.
Facts of prosecution case, in brief, are as
under:
2] The accused is the husband of deceased Sunita
and son-in-law of deceased Gayabai and complainant
Dinkar Kandhare. The complainant Dinkar Kandhare lodged
the report on 13.09.2007. The marriage of accused and
deceased Sunita solemnized five years prior to the incident.
As the accused was not having any child from his first wife,
he married with Sunita, with the consent of first wife. After
1 ½ years of the marriage, accused started suspecting the
chastity of wife and on that ground, he used to beat her
and ill-treat her. The fact of suspecting the character and
ill-treatment was narrated by deceased to the father. In
April, 2007, accused beat the wife, suspecting her chastity,
at that time deceased Sunita came to the house of parents
and since then she was residing at parent’s house. On
04.09.2007, deceased Gayabai was hospitalized in
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Government Hospital for the operation of eye. Deceased
Sunita used to remain with mother in Hospital.
3] On the day of incident i.e. 13.09.2007, accused
went to the house of younger daughter of complainant
Vanita Venkatesh and asked her whereabouts of his wife.
Vanita told him that, she was in Hospital. Therefore,
accused went to Government Hospital during 10.30 to
11.00 a.m., went in the Ward No.10 i.e. eye ward, and
assaulted deceased Sunita and Gayabai with axe. As per
the prosecution case, after assaulting Sunita and Gayabai,
accused threw the axe on the spot. Hearing the shouts of
patients in the ward, the security guard and police of said
Hospital came on the spot, and caught hold the accused on
the spot. Immediately after the incident, the injured were
medically treated. The matter was intimated to the Police
Station, Police came on the spot and took the accused in
custody. While the treatment was going on, unfortunately
Gayabai died after some time and in the night hours Sunita
died.
4] After some time of incident, the father lodged
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the report, offence was registered. Investigation Officer
rushed to the spot and prepared the spot panchanama.
From the spot, one blood stained axe, pair of slipper, one
knife, and pieces of bangles were seized. Around 3.30 p.m.
accused was arrested, thereafter his blood stained clothes
were seized. After the death of Gayabai and Sunita,
inquest panchnamas were prepared and bodies were sent
to the post mortem. Post mortem reports were procured.
The cause of death of Gayabai was ‘due to the cardio
respiratory failure due to head injury with intra cerebral
bleeding’. The death of deceased Sunita was caused due to
the hypo volmic shock due to the liver injury and bleeding
due to the stab. The clothes of Sunita and Gayabai were
also seized.
5] During the investigation, the statements of
witnesses were recorded by two Investigation Officers, the
seized property was sent to C.A. and C.A. reports were
procured. The map of the spot was also drawn by Revenue
Officer. The list of employees of the Hospital present on
the day of incident and list of the patient admitted in the
Eye Ward were also collected. While accused was in
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custody, his confessional statement was recorded by
Special Judicial Magistrate.
6] It is revealed during the investigation that,
accused was suspecting the character of wife Sunita. He
was ill-treating her, therefore, she left the company of
husband and in spite of insistence of accused, wife was not
ready to come back to the house of accused, and therefore,
accused was frustrated, and for getting rid from both i.e.
wife and mother in law, he committed the murder of them.
Therefore, charge sheet was filed in the court of Chief
Judicial Magistrate. The offence being triable by Sessions
Court, it was committed to the Sessions Court.
7] The charge was framed under Section 302 of
Indian Penal Code. Accused pleaded not guilty and claimed
to be tried.
8] To prove the prosecution case, total 18
witnesses were examined by the prosecution. Thereafter,
the statement of accused under Section 313 of Criminal
Procedure Code was recorded. The specific defence of the
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accused was of total denial. His defence is that, he was
called by Police on the pretext and thereafter he was
arrested in Police Station. Neither there was any ill-
treatment to the wife, nor any dispute. He had never gone
to the Hospital and he had never committed any act.
Nobody was examined by the side of accused.
9] The trial Court after conducting full-fledged trial
convicted the appellant for the offence punishable under
Section 302 of I.P. Code for murder of Gayabai and Sunita.
10] The learned counsel Mr. Shriniwas Kulkarni
[Appointed] submits that, the evidence of eye witness is not
reliable. The presence of PW-15 Laxmibai Shankar Mahajan
is not proved by the prosecution. It is submitted that, it is
highly impossible that, appellant went in the Hospital and
killed Gayabai and Sunita. It is submitted that, PW-9 Shila
Vasant Padghane has admitted in cross examination that,
she was not assigned the duty of supplying food to the
patients, and therefore, at the relevant time, her presence
at the place of incident was doubtful. It is submitted that,
the alleged recovery of axe and knife is not proved by the
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prosecution, evidence of all prosecution witnesses suffers
from serious infirmity, and therefore, not believable.
11] The learned APP appearing for the Respondent
– State invited our attention to the evidence of the
prosecution witnesses and also findings recorded by the
trial Court and submits that, there is overwhelming
evidence on record, which indicates guilt of the accused,
and therefore, the trial Court has rightly convicted the
appellant.
12] We have given careful consideration to the
submission of the learned counsel appearing for the
appellant and the learned APP appearing for the
Respondent – State, with their able assistance, perused the
entire evidence on record so as to re-appreciate the same.
The prosecution examined PW-2, PW-9 and PW-15 to prove
the spot of incident and involvement of the appellant in
commission of crime.
The prosecution examined Shila Vasant Padghane
/ Kapse as PW-9, in her deposition before the Court, she
stated that, she is working as a Staff Nurse in Civil Hospital
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Nanded since 1990. Gayabai was admitted in their Hospital
since 06.09.2007. On the day of incident, her duty hours
were from 7.30 a.m. to 3.00 p.m. in Ward No.10, which is
Eye Ward. It was a female ward. At about 10.30 to 11.00
a.m., she was moving the trolley to serve breakfast to the
patients. There were patients and relatives of the patients
in the Ward. She heard some shouts suddenly. She turned
around and saw that one person was present there, who
was relative of the patient and he was there with axe in his
hand. The said person gave blows with an axe on his hand
on the patient, who was on bed. He also assaulted
daughter of the patient who was lying on the floor. The
said person threw the axe. Then the other persons
gathered there along with the police from the police
chowki, which is situated in the campus of the Hospital.
Security Guard also came there, and all of them caught
hold of that person. She informed the incharge of the Ward
to make a phone call to Officers, who then made a phone
call to DMO, RMO, CS, Dean etc. Mrs. Kahalekar Madam was
the then D.M.O. She called for the pad, bandaged etc. and
put the same on the wounds of the patient, and her relative
and then they shifted the patient to casualty ward and also
shifted the relative of the said patient to ICU. There was a
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pool of blood near the bed of the patient. She further
deposed that, the said person who was there in the Hospital
and assaulted on the patient is present in the court hall and
is sitting in the dock.
13] The defence counsel cross examined this
witness in detail. Certain questions were asked to her
about allowing the relatives of the patient to enter into the
ward, and whether any register was maintained by the
Hospital to maintain entry of the relatives of the patient.
However, she stated that, there was no any procedure for
taking the entry of visitors in the register kept at the
channel gate. She stated that, Gayabai was admitted in
th
Ward No. 10 from 6 September, 2007. She further stated
that, being a senior staff it is not her duty to provide break
fast. The learned counsel appearing for the appellant
submits that, PW-9 has admitted that, it was not her duty to
provide breakfast, and therefore, her evidence cannot be
believed. In fact, there was no specific question asked to
her whether on the date of incident, she was asked to serve
breakfast, and therefore, merely because she stated that,
being a senior staff, it was not her duty to provide the
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breakfast, could not nullify her statement in examination in
chief that, on the day of incident her duty hours were from
7.30 a.m. to 3.00 p.m. in Ward No.10 wherein deceased
Gayabai was admitted for eye treatment and she witnessed
the incident. She has no reason to falsely implicate the
appellant being an independent witness. Therefore, her
evidence deserves acceptance and rightly accepted by the
trial Court. She has stated spot of incident and also assault
by the accused on Gayabai and Sunita.
14] The prosecution examined Laxmibai Shankar
Mahajan as PW-15. She witnessed the incident, she stated
that, on the date of incident, she was present in Ward No.
10, Civil Hospital, Nanded. She was admitted for the
purpose of carrying her eye operation. The surgery on her
left eye was already over. She was able to see by her right
eye. Deceased Gayabai was having bed adjacent to her
bed. Sunita was Gayabai’s daughter and she used to stay
with her mother in the Hospital. It was 10.30 a.m. when the
incident took place. At that time, son in law of Gayabai
came there. Quarrel took place between him and Gayabai.
He kept the axe in his hand by hiding its existence, and
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with the said axe he gave a blow on the head of Gayabai.
He gave 2-3 blows successively on the head of Gayabai. At
that time, Gayabai was sitting on the bed. Blood started
oozing out from her head. Sunita was also present there.
The accused also gave blow on her right side chest. The
accused threw the axe there only and ran away from the
place. Then after accused was caught hold. Gayabai and
Sunita were removed from the ward for the purpose of
treatment. They all were also removed from the ward. The
name of the son in law of Gayabai is Ghanshyam. She can
identify him, who is sitting in the Court Hall.
15] This witness was cross examined by the
defence counsel. It appears that, she stated that, her
admission card was not prepared. Hospital has not given
any record about the operation carried out on her eye or
her signature was not obtained by the Hospital. However,
she specifically stated that, she was given bed no. 3 in the
said ward. On the day of incident, she left Hospital in
between 10 to 11 a.m. However, she has specifically
denied the suggestion that, she was never admitted in the
Civil Hospital and that no operation / surgery was carried
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out on her eyes in the Hospital. She denied suggestion
that, she did not witness the incident. It appears that, this
witness is from village, and therefore, she stated
approximate time of living of the Hospital, that does not
mean that, she did not witness the incident. The
prosecution has proved through other witnesses that she
was admitted in the Ward No.10 on adjacent bed of
Gayabai, and therefore, she had every opportunity to
witness the incident. The prosecution has brought on
record the documents to show that, she was admitted in
Ward No. 10 and she was taking treatment on the day of
incident in the said ward. Therefore, her evidence is
natural truthful and does not suffer from infirmity and
deserves acceptance and same is rightly accepted by the
trial Court.
16] The prosecution examined Mohan Jamnasingh
Rathod as PW-2, who was called in Ward No.10. He saw
that, one axe, one knife and bangle pieces were lying.
There was blood on the cot and floor. There was one
chappal, lying there on the spot. An axe was stained with
blood. Police seized the articles and prepared the spot
panchanama and obtained his signature.
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Therefore, the prosecution through this witness,
Investigating Officer and also through PW-9 and PW-15 has
proved the spot panchanama.
17] PW-2, during his cross examination, stated that,
another panch namely Madhav Dhage is serving as Security
Guard in Civil Hospital. Staff room is on southern side of
the Ward No.10. There is entry to Ward No.10 from its
Western side. There are cots for ophthalmic patients on
western side of Ward No.10. Shantabai is also serving as
Security Guard in the Hospital. So many persons had
gathered on the spot. The blood was seen on the bed sheet
and the floor. He cannot say if the chappal and bangle
pieces as well as cloth were stained with blood. Police men
were present on the spot before he reached there. Police
collected articles from the spot. He does not know if
besides the staff and police men there were other persons
on the spot.
He denied suggestion that, there were no blood
stains on axe. He further denied suggestion that all the
articles were already collected by police before he reached
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the spot. He denied suggestion that, spot panchanama
was not drawn in his presence, and that he signed the
panchanama on the say of police. He denied suggestion
that, axe article no. 1 before the Court was not seized from
the spot. He denied all the suggestions given to him.
18] The prosecution examined Purushottam Zariba
Pawar as PW-14. In his examination in chief, he stated that,
in September, 2007, he was working as a Circle Officer,
Revenue Sajja, Nanded Revenue Circle. He received a
letter from Tahsildar, Nanded city for visiting Civil Hospital,
Nanded and preparing a map of scene of offence. The
letter received from Tahsildar now shown to him is the
same. He has brought with him the original copy of the
said letter, which is at Exh.66. API Ghuge came to his office
on 25.10.2007. API Ghuge himself showed him the place of
incident by and after going to Civil Hospital, Nanded. He
prepared the map of the scene of offence and handed over
to Shri Ghuge. The map now shown to him is the same,
which is at Exh.67. He prepared fair copy of the map and
forwarded it to API Ghuge along with covering letter.
Covering letter now shown to him is the same. It bears his
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signature, all the contents in it are correct and same is at
Exh.68.
19] At the relevant time, Ashok Kishanrao Ghuge
was working as API. He was examined as PW-17 by the
prosecution. He received a phone call from the Civil
Hospital, Nanded. He went to ward No.10 and found that
blood was spread over there. Therefore, he also witnessed
the spot of incident. Therefore, the prosecution did prove
the spot of incident of ward No.10 in Civil Hospital, Nanded,
through PW-9, PW-15, PW-2, PW-11, PW-3, PW-14 and
PW-17.
20] The prosecution proved inquest panchanama
through PW-7, PW-9, PW-10 and PW-16, inquest
panchanama is at Exhibit 49. All these witnesses have
stated injuries as noticed by them on both the dead bodies.
The defence has not disputed injuries on the dead body.
21] The prosecution proved that the death of
Gayabai and Sunita was homicidal. As already observed,
the witnesses to the inquest panchanama have stated
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about injuries on the body of Gayabai and Sunita. The
prosecution examined Dr. Venkatesh Vithal Paratwagh as
PW-3. He was working as an Medical Officer at Civil
Hospital, Nanded on 14.09.2007. Dead body of one Sunita
Ghansham was referred for postmortem examination. He
conducted the P.M. on the said dead body. On 14.09.2007,
between 1.20 p.m. to 2.30 p.m. on examination he found
following external injuries on the person of dead body.
i] A wound over the right sub-costed region about
4 to 5 inch in length and its age was within 28
hours. Probably caused due to stab. Sub
tutanaeous issues is dead.
ii] Sub-occipital region wound 2 to 3 inch in
length.
On internal examination, he found following
injuries.
th th
i] 11 and 12 ribs medial end fracture, pleura
congested, both lungs congested.
ii] Peritoneum was thick and injured. Blood and
fluid comed in the cavity.
iii] Liver sub-total removed due to injury by
operation.
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The blood sample was retained. The injuries in
column no. 17 were ante-mortem. In his opinion, the cause
of death is due to Hypo-voluminous shock due to the liver
injury and bleeding due to stab [post operative bleeding
also not stopped]. Accordingly, he has issued the report of
P.M. Examination. Report was shown to him, which bears
his signature. He stated that, contents thereof are true and
correct. He further deposed that, P.M. report is at Exh. 13,
injury no. 1 shown in column no. 17 is sufficient to cause
the death in normal course. The said injury is possible by
means of axe blow. Due to this injury, the internal injury is
caused to liver which resulted in non stop of blood flow.
22] Upon careful perusal of the cross examination
of PW-3, the defence counsel has not brought on record
anything which can be useful to the defence. PW-3 has
given answers in general that, in case the injury is caused
by means of axe, there is possibility of corresponding injury
as per the size of the axe blade and if it was given on ribs
there is possibility of fracture of the ribs. He further stated
that, the injuries shown in column no. 17 probably might
have been caused by sharp pointed object. In case of injury
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by means of axe, there is possibility of tampering. In case,
both the lungs become empty. He further stated that, the
injury to peritoneum is not fatal. He cannot say about the
stage of process of rigor mortise. The process of digestion
becomes slow as soon as the injuries shown in P.M. report
are sustained. He has shown the age of injury as
approximate on his guess.
23] The prosecution examined PW-5 Vanita
Venkatesh Gonerao. In her examination in chief, she stated
that, deceased Sunita was his sister. After her marriage
with the accused, their relation inter se were cordial for first
one and half year. But, thereafter, her husband started ill-
treating her by suspecting her chastity. He was beating her
also on the same count. Her sister used to tell them about
her ill-treatment whenever she used to come to their
village. She further stated that, after marriage, her sister
was living with her husband at Jai Bhim Nagar. Her
husband, thereafter, went to Dhargaon-Purna by physically
assaulting her sister. He also took her sister with him to
Dhargaon. There also he continued the same ill-
treatments. She further stated that, thereafter, her sister
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and her husband both came at Jai Bhim Nagar to reside
there. There also he assaulted her thereby her sister came
back to house of their mother. The said incident took place
in the month of April/May, 2007. Her sister lodged a
complaint against her husband in Shivajinagar Police
Station and since then she started living with her mother
th
only. She further stated that, on 6 September, her mother
was admitted to Hospital to undergo an eye operation. She
was admitted in Civil Hospital at Nanded in Ward No.10.
Sunita used to stay with her mother in the Hospital
th
throughout the day. On 13 September, accused had come
to her house in between 9.00 to 9.30 a.m. and asked her
whereabouts of Sunita. He gave abuses in filthy language
by asking the whereabouts of Sunita. She told him that,
she had gone to Hospital in Ward No.10. At that time, Smt.
Gaikwad, Smt. Gavant were there. She further stated that,
she received a phone call at 11.00 a.m. in the shop of Shri
Kirtane. It was a phone call of Kantabai Pangarekar. She
informed PW-5 on phone that, PW-5 should immediately
come to the Hospital as her mother and sister are being
assaulted by Ghansham. Thereafter, she rushed to the
Hospital and went to Ward No.10. She saw that, her sister
was lying on the floor while her mother was on the bed
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having sustained bleeding injuries on her head. Her mother
had bandage on her head. Her sister had also sustained
injuries on her ribs. She further stated that, at about 1.30
p.m. her mother expired on that day and sister also expired
at 8.00 p.m. Accused Ghansham is present in the Court
and he is sitting in the dock. Her mother’s eye operation
was not carried out prior to her death.
24] During her cross examination, she has
specifically stated that, on the day of incident when
accused had been to her house, he abused her, however,
she did not inform her husband about the said fact. She
th
denied suggestion that, on 13 September, 2007, she had
not gone to the Hospital.
25] The prosecution examined Kantabai Shamrao
Kamble as PW-6. In her examination in chief, she stated
that, she was working as a Security Guard in Civil Hospital,
Nanded. Her duty hours are from 8.00 a.m. to 2.00 p.m.
On 13.09.2007, she was on duty. She arranged a substitute
and went to check her grand son along with her daughter.
When she came back, she heard shouts at the main gate of
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ward. She went ahead by running to ward No.10. All
security persons came towards the said ward. Police
Jamadar Alewar came there. She saw that, accused was
standing there, and there were blood stains on his person.
Police took the accused into their custody. She further saw
that, Gayabai was lying on the bed, while her daughter
Sunita was lying on the floor in pool of blood. There was an
axe on the bed and the knife was on the floor. Medical
Officers came there and they took both of the injured to the
casualty Department for the purpose of checking. She then
contacted Vanita on phone. She narrated the incident to
Vanita on phone and called her immediately to the Civil
Hospital because no relatives were there with them. She
identified the accused before the Court, who was sitting in
the dock.
26] During her cross examination, the defence
counsel did ask certain questions about how many security
persons are appointed for the security of the Civil Hospital
and other details about the Hospital. It further appears
that, PW-6 stated about relationship between Sunita and
Vanita. She further stated that, she knew Vanita as well as
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Sunita. She knows parents of Vanita as well. The defence
counsel tried to bring on record certain omissions during
cross examination. This witness has stated that, though
she stated before the Police that, when Ghansham was
apprehended in the Hospital, there were blood stains on his
person. However, she does not know why said statement is
not appearing in the police statement. However, she
denied suggestion that, she gave false evidence so as to
support prosecution case.
27] The prosecution examined Dr. Suryakant
Ramrao Lonikar as PW-7. His evidence is at Exhibit 36. In
his examination in chief, he stated that, the dead body of
Gayabai was referred to him for the purpose of
postmortem. A corpse was referred to him by PSI
Vazirabad Police Station. The P.M. was carried in between
6.00 p.m. to 7.00 p.m. The dead body was of 55 years age.
She was having one white colour blouse stained with blood
and chocolate colour sari, which was also stained with
blood. The head was covered with cotton bandage. He
found following injuries on her person:
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i] CLW on chin of size 5 x 3 cm x muscle deep.
ii] CLW over left temporal region of head.
iii] CLW mid pariental region of head with brain
matter seen. Size was 7 x 3 cm x brain matter
deep.
iv] CLW left pariental region of head, 5 x 3 x bone
deep with scalp haematoma, size 5 x 3 cm.
v] Fracture pariental bone of size 5 x 3 cm on left
side.
vi] Fracture right pariental bone of size 5 x 3 cm
which were irregular in dimensions.
Evidence of E/o intra cerebral bleed in pariental
region of head.
Evidence of 10 cc blood in skull cavity. All
organs were pale. The death occurred due to cardio
respiratory failure due to head injury with intra cerebral
bleed. He issued a provisional cause of death certificate.
He identified the said certificate, which was shown to him,
which bears his signature. He further deposed that, the
P.M. notes bears his signature. Its contents are correct. It
is marked at Exh.38. Barring one injury on the chin, all the
other injuries were on the head of the deceased. He was
shown muddemal article 8 [axe]. He stated that, the
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injuries on the person of deceased can occur with such
weapon. Since the brain matter has come out of the skull
and there is a fracture of skull, in his opinion, the blow was
given with full force.
28] It appears that, during cross examination
question was asked to him about the size of injury of
temporal region. However, he replied that, he has not
specifically given size of the said injury no. 2 in column no.
17. He has denied suggestion that, injuries mentioned in
column no. 17 are not possible due to axe blow.
29] The prosecution examined Ganesh
Ranganathrao Allewar as PW-8. In his examination in chief,
he stated that, on 13.09.2007, he was attached to
Vazirabad Police Station and was posted in the Police
Chowki situated in the campus of Civil Hospital, Nanded.
His duty hours were from 8.00 p.m. one P.C. Paikwad B. No.
1205 was also with him. When they were on duty, they
heard some shouts from the upper floor in the Hospital as if
somebody was calling for help. Therefore, he himself
P.C.Paikwad and security guard rushed to the ward. He
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further stated that, the name of the security guard was Shri
Giri, Shri Suryawanshi, Shri Bhakne and Kantabai. On going
to the first floor there they found one person having blood
stained clothes on his person found in the eye ward no. 10
in front of sisters room. He was in a frightened condition.
They accosted him there on the spot. He was telling that,
he gained success in his work. They went inside the room
and found one lady on the bed in a seriously injured
condition. Another lady was found lying on the floor. One
axe was also there. The lady who had fallen down on the
floor had sustained severe injuries. Blood stains were
found there as well as the area was in a pool of blood. The
blade of the axe was stained with blood. He further stated
that, they brought the said person towards police chowki
and there they asked his name. He gave him name as
Ghansham Jondhale. He made a phone call to RI of the
Police Station and narrated him all the above said incident.
Shri Ghuge, PSI, who was on DO duty came there and took
the accused into his custody. Dead body of Gayaba was
sent to post mortem room. There they prepared the
inquest panchanama on the dead body in presence of
panchas. They found that, the deceased Gayabai had
sustained injury on her forehead and bandage was applied
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on all over face. She had a wound on the left eye brow. He
further stated that, she had also sustained injury on her
lips. Panchanama was drawn accordingly. Panchanama
shown to him is the same. Both the panchas have affixed
their T.I. while the third panch have signed. There was one
more injury on the chin of the deceased. The inquest
panchanama was shown to this witness. He identified
contents and put signature on the said inquest
panchanama. He identified accused, who was sitting in the
dock. He also identified clothes and axe and also stated
particulars about blouse and sari wore by the Gayabai at
the relevant time on the day of incident. It appears that,
during his cross examination certain details were asked
about location of room of security Guard and also how
many Guards are deputed in Hospital. He has stated in
minute details about how many Security Guards are
deputed inside the Hospital. Upon careful perusal of his
cross examination, nothing useful to the defence has been
brought on record.
30] The prosecution has examined Pandurang Piraji
Gajbhare as PW-10. In his examination in chief, he stated
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that, on 14.09.2007, he was called by the Police in the Civil
Hospital, Nanded. Another panch was with him but he does
not remember his name. They saw the dead body of
Sunita. He has not seen as to whether there was any one
present near the dead body. They had seen that, there
were injuries on the back side of the head of Sunita and
also on her forehead above the left eye brow. She had one
more injury on left side of chest and on her abdominal
portion at back side, and also on her fingers of right hand.
There was injury on her right thigh. Panchanama was
written. It was read over. Then, he signed the
panchanama. It bears his signature, contents in it are
correct, which is at Exh.49. It appears that, during his cross
examination, he stated that, Gayabai was related to him.
However, merely because he is related to Gayabai, is no
reason to disbelieve his evidence in detailed particulars.
31] The prosecution examined Shaikh Jani Shaikh
Ibrahim as PW-11. In his examination in chief, he stated
that, he was attached to office of S.P.Nanded as a
Photographer since March, 1980. On 13.09.2007, a call was
received in their office to the I-Car Unit from Vazirabad
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police Station. He further stated that, he went to the
Government Hospital, Ward No.10 [Eye Ward], Nanded. He
was instructed to take the photographs of the incident spot.
He has a digital camera with him, make Nikkon. He took
out in all 12 photographs of the scene of offence. The
photographs now shown to him are the photographs taken
out by him with his camera. Those are 12 in numbers. The
photographs which were taken out by digital camera were
taken out on a CD and from CD through computers, the
prints outs were taken out. He has not brought with him
the said chip. The photographs were taken out as per the
situation of the spot. He sent the photographs to the Police
Station. As per the chip, they took out the relevant
photographs which are required on a pen drive and by
taking the said pen drive to the Lab, they prepared the CD
from the Lab. He is produced the CD before the Court
along with the list. He further deposed that, he handed
over the photographs to the Vazirabad Police Station.
Those photographs are marked at Exhibit 54 to 66.
32] During his cross examination, he admitted that,
no written letter was given to him to take photographs, nor
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he sought permission from the Civil Surgeon. However, it
appears that, he was working in Investigation-Car Unit at
the relevant time in the office of the Superintendent of
Police, Nanded. However, on the whole, his evidence
remained unshattered.
33] The prosecution examined Ramkishan Nagorao
Gardanmare as PW-12. In his examination in chief, he
stated that, on 19.05.2007, he was attached to Shivajinagar
Police Station. One NC bearing No. 241/2007 was filed
before the Shivajinagar Police Station, which was given to
him for inquiry and report. One deceased Sunita Ghansham
Jondhale had lodged the said NC, alleging that, she had an
apprehension of her life from her husband Ghansham
Jondhale – accused. On inquiry, he initiated a Chapter
Proceeding under Section 107 of Criminal Procedure Code
against Ghansham. He has brought with him the original
register of the year 2007. The entry in respect of
concerned N.C. is on page No. 243, which is in handwriting
of PSO Madrewar. He identified the handwriting. The said
entry is marked at Exhibit-57. He has brought with him the
chapter case register for the year 2007. The entry in
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respect of Chapter Case against Ghansham is on page No.
177. It is in his handwriting. The entry is marked at Exh.
58. Accused before the Court is the same. Interim bond
from Ghansham was obtained.
The questions asked to this witness during
cross examination are relates to the motive for commission
of offence. However, in the present case, since there is
direct evidence in the nature of eye witnesses motive
looses its importance. Therefore, in earlier inquiry into N.C.
No. 241/2007 whether anything adversed to Ghansham had
come on record is not important. The evidence of PW-12 is
important since Sunita lodged the N.C. against accused
stating that, she had apprehension to danger of her life
from the accused – Ghansham.
34] The prosecution examined Subhash Bhimrao
Suryawanshi as PW-13. In his examination in chief, he
stated that, he was attached to Vazirabad Police Station
during the year 2007 to 2008. API Mr. Ghuge was attached
to Vazirabad Police Station. He knew him as he worked
with him. He further stated that, on 13.09.2007, API Mr.
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Ghuge was on duty. On that day at about 11.10 a.m. PHC
Allewar informed the Police Station on phone that, in the
Female Ward No.10 of the Government Hospital, one
person has attempted to cause death of two ladies. He was
there in the Police Station. Accordingly, he went to the
Hospital along with API Mr. Ghuge by giving information to
the Senior Officer. They went to the Government Hospital
and reached to Ward No.10 and found that, an axe stained
with blood. They saw pool of blood on the floor and also
bed stained with blood, pair of sleepers was also there. API
Mr. Ghuge and PI Mr. Sonwane asked him to stay on the
spot in protection of the spot. Accordingly, he remained on
the spot. A panchanama of scene of offence was prepared
th
in his presence. He further stated that, on 19 he carried
the seized articles to CA, Aurangabad. All those articles
were sealed and the seal was intact. A forwarding letter
was given to him which was signed by Deputy
Superintendent of Police Mr. Sharma. He reached those
articles to the office of C.A., obtained acknowledgment of
O/C and produced the O/C at Vazirabad Police Station. The
articles were produced in the office of C.A. in the same
conditions in which he had received those articles. The O/C
bears signature of Shri Sharma, Dy. S.P. He identified his
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signature. The acknowledgment bears the rubber seal of
the office of CA, Aurangabad. The O/C is marked at Exhibit
60.
The evidence of PW-13 is important to the
extent that, on the date of incident at about 11.00 a.m. the
information was received from the Police Head Constable
Mr. Allewar i.e. PW- 8 informed that, one person has
attempted to cause death of two ladies in Ward No. 10 of
the Government Hospital and then this witness
accompanied API Mr. Ghuge to the Hospital. During his
cross examination, the defence counsel has not brought
anything substantial on record, which can be said to be
useful to the defence.
35] PW-16 [Sayed Shaiuddin Syed Mohd. Ali gave
inquest panchanama of dead body of Sunita.
36] We have discussed in the foregoing paragraphs
the evidence of all the prosecution witnesses. The evidence
of Laxmibai Mahajan, who was eye witness to the incident,
clearly shows the involvement of the accused in killing
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Gayabai and Sunita. The presence of the PW-15 Laxmibai,
on the relevant date and time in Ward No.10 of the
Government Hospital, has been convincingly proved by the
prosecution. Exhibit-84, which is on record, relates to the
names of the patients in ward No.10 at the relevant date.
The registration number and the addresses of the patients
are entered in the said register, and the certified true
copies signed by the concerned Medical Officer is produced
on record. At serial No.15 name of Gayabai is appearing.
Against her name her address of Ganeshnagar is given and
the date of admission is mentioned as 06.09.2007. The
name of Laxmibai i.e. PW-15 is appearing in the said list,
her address is shown ‘Tamsa Hadgaon’ and her date of
admission is given as 11.09.2007. Duty list of Eye Ward
was also produced before the Court, which is duly certified
by the Medical Officer. The evidence of PW-15 and PW-9,
who are actual eye witnesses to the incident, gets
corroborated from the evidence of each other. There are
other prosecution witnesses, who immediately arrived to
the spot and saw that, Gayabai lying on the cot with injuries
and Sunita was lying on floor in pool of blood in Ward No.
10. There is overwhelming evidence brought on record to
prove guilt of the accused. The accused was caught hold
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on spot itself. Axe and knife were recovered from the spot.
There is enough corroboration to the direct evidence
brought on record by the prosecution. The medical
evidence unequivocally indicates that the death of Gayabai
and Sunita was homicidal and injuries are on vital part.
Therefore, we have no hesitation to hold that, the appellant
killed Gayabai and Sunita by using axe and the same is
produced by the prosecution beyond reasonable doubt.
The findings recorded by the trial Court are in consonance
with the evidence on record.
37] The trial Court ordered that, the accused
Ghanshyam shall undergo life imprisonment for committing
the murder of Gayabai and for committing murder of Sunita
Ghansham Jondhale, which shall not be less than 28 years.
In order to find out whether the sentence of minimum 28
years ordered by the trial Court is appropriate or otherwise,
it would be worthwhile to make reference to the
observations of the Supreme Court in the case of Jai
1
Kumar Vs. State of M.P. , it is observed that, Justice is
supreme and justice ought to be beneficial for the society
so that the society is placed in a better off situation. Law
1. [1999] 5 SCC 1
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courts exist for the society and ought to rise up to the
occasion to do the needful in the matter, and as such ought
to act in a manner so as to sub-serve the basic requirement
of the society. It is a requirement of the society and the
law must respond to its need. The greatest virtue of law is
its flexibility and its adaptability, it must change from time
to time so that it answers the cry of the people, the need of
the hour and the order of the day.
38] In the present case, the appellant went to the
Government Hospital with axe and knife and committed
murder of Gayabai and Sunita. The evidence brought on
record by the prosecution leaves no doubt in the mind that,
the appellant went fully prepared to kill Gayabai and Sunita.
The act of the appellant was cold blooded murders. The
manner in which Gayabai and Sunita were killed by
inflicting blows on their vital part in the Government
Hospital, not only created terror in the Government
Hospital, which is a public place, but the said act must had
impact on the society. Therefore, the trial Court keeping in
view the Judgment of the Supreme Court in the case of
2
Hari Ghos Vs. State of West Bengal , rightly held that
2. 2009 All MR [Cri.] 3097
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imprisonment for life means through out the life of the
accused thereby the period of his imprisonment shall not be
less than 28 years.
39] In our opinion, the trial Court has rightly
ordered that, the appellant shall undergo minimum 28
years sentence. The Supreme Court in the case of Mulla &
3
another Vs. State of Uttar Pradesh in the facts of that
case, held that, punishment of life sentence to the
appellant – accused must extend to their full life, subject to
any remission by Government for good reasons.
40] The Hon’ble Supreme Court in the case of
4
Mohd. Jamiludin Nasir Vs. State of West Bengal in
para 175 observed that, the sentence to be awarded should
achieve twin objectives: [a] Deterrence, [b] Correction. The
court should consider social interest and consciousness of
the society for awarding appropriate punishment.
Seriousness of the crime and the criminal history of the
accused is yet another factor. Graver the offence longer
the criminal record should result severity in the
3. [2010] 3 SCC 508
4. [2014] 7 SCC 443
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punishment. Undue sympathy to impose inadequate
sentence would do more harm to the public. Imposition of
inadequate sentence would undermine the public
confidence in the efficacy of law and society cannot endure
such threats.
41] In the light of the discussion in the foregoing
paragraphs, we are of the considered view that, appeal
sans merit, hence dismissed. We quantify Rs.3000/-
[Rs.Three Thousand only] towards fees and expenses of the
learned appointed counsel Mr. Shriniwas Kulkarni.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S. SHINDE, J.]
DDC
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 223 OF 2012
Ghanshyam s/o. Masaji Jondhale,
Age Major Yrs., Occu. Nil,
R/o. Jaibhim Nagar, Nanded,
Tq. & Dist. Nanded APPELLANT
[Orig. Complainant]
VERSUS
The State of Maharashtra,
Through Police Station
Vazirabad, Nanded,
Tq. & Dist. Nanded RESPONDENT
...
Mr. Shriniwas Kulkarni, Advocate for the Appellant
Mr. A.V.Deshmukh, APP for the Respondent – State
...
CORAM : S.S. SHINDE &
A.I.S.CHEEMA, JJ.
Date of Judgment: 06.07.2015
JUDGMENT [Per S.S.Shinde, J.]:
1] This Criminal Appeal is filed by the Appellant
[original accused], challenging the Judgment and Order
dated 25.11.2011 passed by the learned Additional
Sessions Judge-1, Nanded in Sessions Case No. 217 of
2007, thereby convicting the appellant for the offence
punishable under Section 302 of Indian Penal Code for the
murder of Gayabai and Sunita and sentenced to suffer life
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2
imprisonment, which shall not be less than 28 years of
actual jail sentence, meaning that the accused should
remain in jail for minimum 28 years and to pay a fine of
Rs.1000/-, in default to suffer another one year.
Facts of prosecution case, in brief, are as
under:
2] The accused is the husband of deceased Sunita
and son-in-law of deceased Gayabai and complainant
Dinkar Kandhare. The complainant Dinkar Kandhare lodged
the report on 13.09.2007. The marriage of accused and
deceased Sunita solemnized five years prior to the incident.
As the accused was not having any child from his first wife,
he married with Sunita, with the consent of first wife. After
1 ½ years of the marriage, accused started suspecting the
chastity of wife and on that ground, he used to beat her
and ill-treat her. The fact of suspecting the character and
ill-treatment was narrated by deceased to the father. In
April, 2007, accused beat the wife, suspecting her chastity,
at that time deceased Sunita came to the house of parents
and since then she was residing at parent’s house. On
04.09.2007, deceased Gayabai was hospitalized in
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Government Hospital for the operation of eye. Deceased
Sunita used to remain with mother in Hospital.
3] On the day of incident i.e. 13.09.2007, accused
went to the house of younger daughter of complainant
Vanita Venkatesh and asked her whereabouts of his wife.
Vanita told him that, she was in Hospital. Therefore,
accused went to Government Hospital during 10.30 to
11.00 a.m., went in the Ward No.10 i.e. eye ward, and
assaulted deceased Sunita and Gayabai with axe. As per
the prosecution case, after assaulting Sunita and Gayabai,
accused threw the axe on the spot. Hearing the shouts of
patients in the ward, the security guard and police of said
Hospital came on the spot, and caught hold the accused on
the spot. Immediately after the incident, the injured were
medically treated. The matter was intimated to the Police
Station, Police came on the spot and took the accused in
custody. While the treatment was going on, unfortunately
Gayabai died after some time and in the night hours Sunita
died.
4] After some time of incident, the father lodged
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4
the report, offence was registered. Investigation Officer
rushed to the spot and prepared the spot panchanama.
From the spot, one blood stained axe, pair of slipper, one
knife, and pieces of bangles were seized. Around 3.30 p.m.
accused was arrested, thereafter his blood stained clothes
were seized. After the death of Gayabai and Sunita,
inquest panchnamas were prepared and bodies were sent
to the post mortem. Post mortem reports were procured.
The cause of death of Gayabai was ‘due to the cardio
respiratory failure due to head injury with intra cerebral
bleeding’. The death of deceased Sunita was caused due to
the hypo volmic shock due to the liver injury and bleeding
due to the stab. The clothes of Sunita and Gayabai were
also seized.
5] During the investigation, the statements of
witnesses were recorded by two Investigation Officers, the
seized property was sent to C.A. and C.A. reports were
procured. The map of the spot was also drawn by Revenue
Officer. The list of employees of the Hospital present on
the day of incident and list of the patient admitted in the
Eye Ward were also collected. While accused was in
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custody, his confessional statement was recorded by
Special Judicial Magistrate.
6] It is revealed during the investigation that,
accused was suspecting the character of wife Sunita. He
was ill-treating her, therefore, she left the company of
husband and in spite of insistence of accused, wife was not
ready to come back to the house of accused, and therefore,
accused was frustrated, and for getting rid from both i.e.
wife and mother in law, he committed the murder of them.
Therefore, charge sheet was filed in the court of Chief
Judicial Magistrate. The offence being triable by Sessions
Court, it was committed to the Sessions Court.
7] The charge was framed under Section 302 of
Indian Penal Code. Accused pleaded not guilty and claimed
to be tried.
8] To prove the prosecution case, total 18
witnesses were examined by the prosecution. Thereafter,
the statement of accused under Section 313 of Criminal
Procedure Code was recorded. The specific defence of the
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accused was of total denial. His defence is that, he was
called by Police on the pretext and thereafter he was
arrested in Police Station. Neither there was any ill-
treatment to the wife, nor any dispute. He had never gone
to the Hospital and he had never committed any act.
Nobody was examined by the side of accused.
9] The trial Court after conducting full-fledged trial
convicted the appellant for the offence punishable under
Section 302 of I.P. Code for murder of Gayabai and Sunita.
10] The learned counsel Mr. Shriniwas Kulkarni
[Appointed] submits that, the evidence of eye witness is not
reliable. The presence of PW-15 Laxmibai Shankar Mahajan
is not proved by the prosecution. It is submitted that, it is
highly impossible that, appellant went in the Hospital and
killed Gayabai and Sunita. It is submitted that, PW-9 Shila
Vasant Padghane has admitted in cross examination that,
she was not assigned the duty of supplying food to the
patients, and therefore, at the relevant time, her presence
at the place of incident was doubtful. It is submitted that,
the alleged recovery of axe and knife is not proved by the
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prosecution, evidence of all prosecution witnesses suffers
from serious infirmity, and therefore, not believable.
11] The learned APP appearing for the Respondent
– State invited our attention to the evidence of the
prosecution witnesses and also findings recorded by the
trial Court and submits that, there is overwhelming
evidence on record, which indicates guilt of the accused,
and therefore, the trial Court has rightly convicted the
appellant.
12] We have given careful consideration to the
submission of the learned counsel appearing for the
appellant and the learned APP appearing for the
Respondent – State, with their able assistance, perused the
entire evidence on record so as to re-appreciate the same.
The prosecution examined PW-2, PW-9 and PW-15 to prove
the spot of incident and involvement of the appellant in
commission of crime.
The prosecution examined Shila Vasant Padghane
/ Kapse as PW-9, in her deposition before the Court, she
stated that, she is working as a Staff Nurse in Civil Hospital
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Nanded since 1990. Gayabai was admitted in their Hospital
since 06.09.2007. On the day of incident, her duty hours
were from 7.30 a.m. to 3.00 p.m. in Ward No.10, which is
Eye Ward. It was a female ward. At about 10.30 to 11.00
a.m., she was moving the trolley to serve breakfast to the
patients. There were patients and relatives of the patients
in the Ward. She heard some shouts suddenly. She turned
around and saw that one person was present there, who
was relative of the patient and he was there with axe in his
hand. The said person gave blows with an axe on his hand
on the patient, who was on bed. He also assaulted
daughter of the patient who was lying on the floor. The
said person threw the axe. Then the other persons
gathered there along with the police from the police
chowki, which is situated in the campus of the Hospital.
Security Guard also came there, and all of them caught
hold of that person. She informed the incharge of the Ward
to make a phone call to Officers, who then made a phone
call to DMO, RMO, CS, Dean etc. Mrs. Kahalekar Madam was
the then D.M.O. She called for the pad, bandaged etc. and
put the same on the wounds of the patient, and her relative
and then they shifted the patient to casualty ward and also
shifted the relative of the said patient to ICU. There was a
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pool of blood near the bed of the patient. She further
deposed that, the said person who was there in the Hospital
and assaulted on the patient is present in the court hall and
is sitting in the dock.
13] The defence counsel cross examined this
witness in detail. Certain questions were asked to her
about allowing the relatives of the patient to enter into the
ward, and whether any register was maintained by the
Hospital to maintain entry of the relatives of the patient.
However, she stated that, there was no any procedure for
taking the entry of visitors in the register kept at the
channel gate. She stated that, Gayabai was admitted in
th
Ward No. 10 from 6 September, 2007. She further stated
that, being a senior staff it is not her duty to provide break
fast. The learned counsel appearing for the appellant
submits that, PW-9 has admitted that, it was not her duty to
provide breakfast, and therefore, her evidence cannot be
believed. In fact, there was no specific question asked to
her whether on the date of incident, she was asked to serve
breakfast, and therefore, merely because she stated that,
being a senior staff, it was not her duty to provide the
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breakfast, could not nullify her statement in examination in
chief that, on the day of incident her duty hours were from
7.30 a.m. to 3.00 p.m. in Ward No.10 wherein deceased
Gayabai was admitted for eye treatment and she witnessed
the incident. She has no reason to falsely implicate the
appellant being an independent witness. Therefore, her
evidence deserves acceptance and rightly accepted by the
trial Court. She has stated spot of incident and also assault
by the accused on Gayabai and Sunita.
14] The prosecution examined Laxmibai Shankar
Mahajan as PW-15. She witnessed the incident, she stated
that, on the date of incident, she was present in Ward No.
10, Civil Hospital, Nanded. She was admitted for the
purpose of carrying her eye operation. The surgery on her
left eye was already over. She was able to see by her right
eye. Deceased Gayabai was having bed adjacent to her
bed. Sunita was Gayabai’s daughter and she used to stay
with her mother in the Hospital. It was 10.30 a.m. when the
incident took place. At that time, son in law of Gayabai
came there. Quarrel took place between him and Gayabai.
He kept the axe in his hand by hiding its existence, and
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11
with the said axe he gave a blow on the head of Gayabai.
He gave 2-3 blows successively on the head of Gayabai. At
that time, Gayabai was sitting on the bed. Blood started
oozing out from her head. Sunita was also present there.
The accused also gave blow on her right side chest. The
accused threw the axe there only and ran away from the
place. Then after accused was caught hold. Gayabai and
Sunita were removed from the ward for the purpose of
treatment. They all were also removed from the ward. The
name of the son in law of Gayabai is Ghanshyam. She can
identify him, who is sitting in the Court Hall.
15] This witness was cross examined by the
defence counsel. It appears that, she stated that, her
admission card was not prepared. Hospital has not given
any record about the operation carried out on her eye or
her signature was not obtained by the Hospital. However,
she specifically stated that, she was given bed no. 3 in the
said ward. On the day of incident, she left Hospital in
between 10 to 11 a.m. However, she has specifically
denied the suggestion that, she was never admitted in the
Civil Hospital and that no operation / surgery was carried
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out on her eyes in the Hospital. She denied suggestion
that, she did not witness the incident. It appears that, this
witness is from village, and therefore, she stated
approximate time of living of the Hospital, that does not
mean that, she did not witness the incident. The
prosecution has proved through other witnesses that she
was admitted in the Ward No.10 on adjacent bed of
Gayabai, and therefore, she had every opportunity to
witness the incident. The prosecution has brought on
record the documents to show that, she was admitted in
Ward No. 10 and she was taking treatment on the day of
incident in the said ward. Therefore, her evidence is
natural truthful and does not suffer from infirmity and
deserves acceptance and same is rightly accepted by the
trial Court.
16] The prosecution examined Mohan Jamnasingh
Rathod as PW-2, who was called in Ward No.10. He saw
that, one axe, one knife and bangle pieces were lying.
There was blood on the cot and floor. There was one
chappal, lying there on the spot. An axe was stained with
blood. Police seized the articles and prepared the spot
panchanama and obtained his signature.
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Therefore, the prosecution through this witness,
Investigating Officer and also through PW-9 and PW-15 has
proved the spot panchanama.
17] PW-2, during his cross examination, stated that,
another panch namely Madhav Dhage is serving as Security
Guard in Civil Hospital. Staff room is on southern side of
the Ward No.10. There is entry to Ward No.10 from its
Western side. There are cots for ophthalmic patients on
western side of Ward No.10. Shantabai is also serving as
Security Guard in the Hospital. So many persons had
gathered on the spot. The blood was seen on the bed sheet
and the floor. He cannot say if the chappal and bangle
pieces as well as cloth were stained with blood. Police men
were present on the spot before he reached there. Police
collected articles from the spot. He does not know if
besides the staff and police men there were other persons
on the spot.
He denied suggestion that, there were no blood
stains on axe. He further denied suggestion that all the
articles were already collected by police before he reached
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the spot. He denied suggestion that, spot panchanama
was not drawn in his presence, and that he signed the
panchanama on the say of police. He denied suggestion
that, axe article no. 1 before the Court was not seized from
the spot. He denied all the suggestions given to him.
18] The prosecution examined Purushottam Zariba
Pawar as PW-14. In his examination in chief, he stated that,
in September, 2007, he was working as a Circle Officer,
Revenue Sajja, Nanded Revenue Circle. He received a
letter from Tahsildar, Nanded city for visiting Civil Hospital,
Nanded and preparing a map of scene of offence. The
letter received from Tahsildar now shown to him is the
same. He has brought with him the original copy of the
said letter, which is at Exh.66. API Ghuge came to his office
on 25.10.2007. API Ghuge himself showed him the place of
incident by and after going to Civil Hospital, Nanded. He
prepared the map of the scene of offence and handed over
to Shri Ghuge. The map now shown to him is the same,
which is at Exh.67. He prepared fair copy of the map and
forwarded it to API Ghuge along with covering letter.
Covering letter now shown to him is the same. It bears his
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signature, all the contents in it are correct and same is at
Exh.68.
19] At the relevant time, Ashok Kishanrao Ghuge
was working as API. He was examined as PW-17 by the
prosecution. He received a phone call from the Civil
Hospital, Nanded. He went to ward No.10 and found that
blood was spread over there. Therefore, he also witnessed
the spot of incident. Therefore, the prosecution did prove
the spot of incident of ward No.10 in Civil Hospital, Nanded,
through PW-9, PW-15, PW-2, PW-11, PW-3, PW-14 and
PW-17.
20] The prosecution proved inquest panchanama
through PW-7, PW-9, PW-10 and PW-16, inquest
panchanama is at Exhibit 49. All these witnesses have
stated injuries as noticed by them on both the dead bodies.
The defence has not disputed injuries on the dead body.
21] The prosecution proved that the death of
Gayabai and Sunita was homicidal. As already observed,
the witnesses to the inquest panchanama have stated
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about injuries on the body of Gayabai and Sunita. The
prosecution examined Dr. Venkatesh Vithal Paratwagh as
PW-3. He was working as an Medical Officer at Civil
Hospital, Nanded on 14.09.2007. Dead body of one Sunita
Ghansham was referred for postmortem examination. He
conducted the P.M. on the said dead body. On 14.09.2007,
between 1.20 p.m. to 2.30 p.m. on examination he found
following external injuries on the person of dead body.
i] A wound over the right sub-costed region about
4 to 5 inch in length and its age was within 28
hours. Probably caused due to stab. Sub
tutanaeous issues is dead.
ii] Sub-occipital region wound 2 to 3 inch in
length.
On internal examination, he found following
injuries.
th th
i] 11 and 12 ribs medial end fracture, pleura
congested, both lungs congested.
ii] Peritoneum was thick and injured. Blood and
fluid comed in the cavity.
iii] Liver sub-total removed due to injury by
operation.
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The blood sample was retained. The injuries in
column no. 17 were ante-mortem. In his opinion, the cause
of death is due to Hypo-voluminous shock due to the liver
injury and bleeding due to stab [post operative bleeding
also not stopped]. Accordingly, he has issued the report of
P.M. Examination. Report was shown to him, which bears
his signature. He stated that, contents thereof are true and
correct. He further deposed that, P.M. report is at Exh. 13,
injury no. 1 shown in column no. 17 is sufficient to cause
the death in normal course. The said injury is possible by
means of axe blow. Due to this injury, the internal injury is
caused to liver which resulted in non stop of blood flow.
22] Upon careful perusal of the cross examination
of PW-3, the defence counsel has not brought on record
anything which can be useful to the defence. PW-3 has
given answers in general that, in case the injury is caused
by means of axe, there is possibility of corresponding injury
as per the size of the axe blade and if it was given on ribs
there is possibility of fracture of the ribs. He further stated
that, the injuries shown in column no. 17 probably might
have been caused by sharp pointed object. In case of injury
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by means of axe, there is possibility of tampering. In case,
both the lungs become empty. He further stated that, the
injury to peritoneum is not fatal. He cannot say about the
stage of process of rigor mortise. The process of digestion
becomes slow as soon as the injuries shown in P.M. report
are sustained. He has shown the age of injury as
approximate on his guess.
23] The prosecution examined PW-5 Vanita
Venkatesh Gonerao. In her examination in chief, she stated
that, deceased Sunita was his sister. After her marriage
with the accused, their relation inter se were cordial for first
one and half year. But, thereafter, her husband started ill-
treating her by suspecting her chastity. He was beating her
also on the same count. Her sister used to tell them about
her ill-treatment whenever she used to come to their
village. She further stated that, after marriage, her sister
was living with her husband at Jai Bhim Nagar. Her
husband, thereafter, went to Dhargaon-Purna by physically
assaulting her sister. He also took her sister with him to
Dhargaon. There also he continued the same ill-
treatments. She further stated that, thereafter, her sister
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and her husband both came at Jai Bhim Nagar to reside
there. There also he assaulted her thereby her sister came
back to house of their mother. The said incident took place
in the month of April/May, 2007. Her sister lodged a
complaint against her husband in Shivajinagar Police
Station and since then she started living with her mother
th
only. She further stated that, on 6 September, her mother
was admitted to Hospital to undergo an eye operation. She
was admitted in Civil Hospital at Nanded in Ward No.10.
Sunita used to stay with her mother in the Hospital
th
throughout the day. On 13 September, accused had come
to her house in between 9.00 to 9.30 a.m. and asked her
whereabouts of Sunita. He gave abuses in filthy language
by asking the whereabouts of Sunita. She told him that,
she had gone to Hospital in Ward No.10. At that time, Smt.
Gaikwad, Smt. Gavant were there. She further stated that,
she received a phone call at 11.00 a.m. in the shop of Shri
Kirtane. It was a phone call of Kantabai Pangarekar. She
informed PW-5 on phone that, PW-5 should immediately
come to the Hospital as her mother and sister are being
assaulted by Ghansham. Thereafter, she rushed to the
Hospital and went to Ward No.10. She saw that, her sister
was lying on the floor while her mother was on the bed
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having sustained bleeding injuries on her head. Her mother
had bandage on her head. Her sister had also sustained
injuries on her ribs. She further stated that, at about 1.30
p.m. her mother expired on that day and sister also expired
at 8.00 p.m. Accused Ghansham is present in the Court
and he is sitting in the dock. Her mother’s eye operation
was not carried out prior to her death.
24] During her cross examination, she has
specifically stated that, on the day of incident when
accused had been to her house, he abused her, however,
she did not inform her husband about the said fact. She
th
denied suggestion that, on 13 September, 2007, she had
not gone to the Hospital.
25] The prosecution examined Kantabai Shamrao
Kamble as PW-6. In her examination in chief, she stated
that, she was working as a Security Guard in Civil Hospital,
Nanded. Her duty hours are from 8.00 a.m. to 2.00 p.m.
On 13.09.2007, she was on duty. She arranged a substitute
and went to check her grand son along with her daughter.
When she came back, she heard shouts at the main gate of
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ward. She went ahead by running to ward No.10. All
security persons came towards the said ward. Police
Jamadar Alewar came there. She saw that, accused was
standing there, and there were blood stains on his person.
Police took the accused into their custody. She further saw
that, Gayabai was lying on the bed, while her daughter
Sunita was lying on the floor in pool of blood. There was an
axe on the bed and the knife was on the floor. Medical
Officers came there and they took both of the injured to the
casualty Department for the purpose of checking. She then
contacted Vanita on phone. She narrated the incident to
Vanita on phone and called her immediately to the Civil
Hospital because no relatives were there with them. She
identified the accused before the Court, who was sitting in
the dock.
26] During her cross examination, the defence
counsel did ask certain questions about how many security
persons are appointed for the security of the Civil Hospital
and other details about the Hospital. It further appears
that, PW-6 stated about relationship between Sunita and
Vanita. She further stated that, she knew Vanita as well as
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Sunita. She knows parents of Vanita as well. The defence
counsel tried to bring on record certain omissions during
cross examination. This witness has stated that, though
she stated before the Police that, when Ghansham was
apprehended in the Hospital, there were blood stains on his
person. However, she does not know why said statement is
not appearing in the police statement. However, she
denied suggestion that, she gave false evidence so as to
support prosecution case.
27] The prosecution examined Dr. Suryakant
Ramrao Lonikar as PW-7. His evidence is at Exhibit 36. In
his examination in chief, he stated that, the dead body of
Gayabai was referred to him for the purpose of
postmortem. A corpse was referred to him by PSI
Vazirabad Police Station. The P.M. was carried in between
6.00 p.m. to 7.00 p.m. The dead body was of 55 years age.
She was having one white colour blouse stained with blood
and chocolate colour sari, which was also stained with
blood. The head was covered with cotton bandage. He
found following injuries on her person:
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i] CLW on chin of size 5 x 3 cm x muscle deep.
ii] CLW over left temporal region of head.
iii] CLW mid pariental region of head with brain
matter seen. Size was 7 x 3 cm x brain matter
deep.
iv] CLW left pariental region of head, 5 x 3 x bone
deep with scalp haematoma, size 5 x 3 cm.
v] Fracture pariental bone of size 5 x 3 cm on left
side.
vi] Fracture right pariental bone of size 5 x 3 cm
which were irregular in dimensions.
Evidence of E/o intra cerebral bleed in pariental
region of head.
Evidence of 10 cc blood in skull cavity. All
organs were pale. The death occurred due to cardio
respiratory failure due to head injury with intra cerebral
bleed. He issued a provisional cause of death certificate.
He identified the said certificate, which was shown to him,
which bears his signature. He further deposed that, the
P.M. notes bears his signature. Its contents are correct. It
is marked at Exh.38. Barring one injury on the chin, all the
other injuries were on the head of the deceased. He was
shown muddemal article 8 [axe]. He stated that, the
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injuries on the person of deceased can occur with such
weapon. Since the brain matter has come out of the skull
and there is a fracture of skull, in his opinion, the blow was
given with full force.
28] It appears that, during cross examination
question was asked to him about the size of injury of
temporal region. However, he replied that, he has not
specifically given size of the said injury no. 2 in column no.
17. He has denied suggestion that, injuries mentioned in
column no. 17 are not possible due to axe blow.
29] The prosecution examined Ganesh
Ranganathrao Allewar as PW-8. In his examination in chief,
he stated that, on 13.09.2007, he was attached to
Vazirabad Police Station and was posted in the Police
Chowki situated in the campus of Civil Hospital, Nanded.
His duty hours were from 8.00 p.m. one P.C. Paikwad B. No.
1205 was also with him. When they were on duty, they
heard some shouts from the upper floor in the Hospital as if
somebody was calling for help. Therefore, he himself
P.C.Paikwad and security guard rushed to the ward. He
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further stated that, the name of the security guard was Shri
Giri, Shri Suryawanshi, Shri Bhakne and Kantabai. On going
to the first floor there they found one person having blood
stained clothes on his person found in the eye ward no. 10
in front of sisters room. He was in a frightened condition.
They accosted him there on the spot. He was telling that,
he gained success in his work. They went inside the room
and found one lady on the bed in a seriously injured
condition. Another lady was found lying on the floor. One
axe was also there. The lady who had fallen down on the
floor had sustained severe injuries. Blood stains were
found there as well as the area was in a pool of blood. The
blade of the axe was stained with blood. He further stated
that, they brought the said person towards police chowki
and there they asked his name. He gave him name as
Ghansham Jondhale. He made a phone call to RI of the
Police Station and narrated him all the above said incident.
Shri Ghuge, PSI, who was on DO duty came there and took
the accused into his custody. Dead body of Gayaba was
sent to post mortem room. There they prepared the
inquest panchanama on the dead body in presence of
panchas. They found that, the deceased Gayabai had
sustained injury on her forehead and bandage was applied
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on all over face. She had a wound on the left eye brow. He
further stated that, she had also sustained injury on her
lips. Panchanama was drawn accordingly. Panchanama
shown to him is the same. Both the panchas have affixed
their T.I. while the third panch have signed. There was one
more injury on the chin of the deceased. The inquest
panchanama was shown to this witness. He identified
contents and put signature on the said inquest
panchanama. He identified accused, who was sitting in the
dock. He also identified clothes and axe and also stated
particulars about blouse and sari wore by the Gayabai at
the relevant time on the day of incident. It appears that,
during his cross examination certain details were asked
about location of room of security Guard and also how
many Guards are deputed in Hospital. He has stated in
minute details about how many Security Guards are
deputed inside the Hospital. Upon careful perusal of his
cross examination, nothing useful to the defence has been
brought on record.
30] The prosecution has examined Pandurang Piraji
Gajbhare as PW-10. In his examination in chief, he stated
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that, on 14.09.2007, he was called by the Police in the Civil
Hospital, Nanded. Another panch was with him but he does
not remember his name. They saw the dead body of
Sunita. He has not seen as to whether there was any one
present near the dead body. They had seen that, there
were injuries on the back side of the head of Sunita and
also on her forehead above the left eye brow. She had one
more injury on left side of chest and on her abdominal
portion at back side, and also on her fingers of right hand.
There was injury on her right thigh. Panchanama was
written. It was read over. Then, he signed the
panchanama. It bears his signature, contents in it are
correct, which is at Exh.49. It appears that, during his cross
examination, he stated that, Gayabai was related to him.
However, merely because he is related to Gayabai, is no
reason to disbelieve his evidence in detailed particulars.
31] The prosecution examined Shaikh Jani Shaikh
Ibrahim as PW-11. In his examination in chief, he stated
that, he was attached to office of S.P.Nanded as a
Photographer since March, 1980. On 13.09.2007, a call was
received in their office to the I-Car Unit from Vazirabad
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police Station. He further stated that, he went to the
Government Hospital, Ward No.10 [Eye Ward], Nanded. He
was instructed to take the photographs of the incident spot.
He has a digital camera with him, make Nikkon. He took
out in all 12 photographs of the scene of offence. The
photographs now shown to him are the photographs taken
out by him with his camera. Those are 12 in numbers. The
photographs which were taken out by digital camera were
taken out on a CD and from CD through computers, the
prints outs were taken out. He has not brought with him
the said chip. The photographs were taken out as per the
situation of the spot. He sent the photographs to the Police
Station. As per the chip, they took out the relevant
photographs which are required on a pen drive and by
taking the said pen drive to the Lab, they prepared the CD
from the Lab. He is produced the CD before the Court
along with the list. He further deposed that, he handed
over the photographs to the Vazirabad Police Station.
Those photographs are marked at Exhibit 54 to 66.
32] During his cross examination, he admitted that,
no written letter was given to him to take photographs, nor
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29
he sought permission from the Civil Surgeon. However, it
appears that, he was working in Investigation-Car Unit at
the relevant time in the office of the Superintendent of
Police, Nanded. However, on the whole, his evidence
remained unshattered.
33] The prosecution examined Ramkishan Nagorao
Gardanmare as PW-12. In his examination in chief, he
stated that, on 19.05.2007, he was attached to Shivajinagar
Police Station. One NC bearing No. 241/2007 was filed
before the Shivajinagar Police Station, which was given to
him for inquiry and report. One deceased Sunita Ghansham
Jondhale had lodged the said NC, alleging that, she had an
apprehension of her life from her husband Ghansham
Jondhale – accused. On inquiry, he initiated a Chapter
Proceeding under Section 107 of Criminal Procedure Code
against Ghansham. He has brought with him the original
register of the year 2007. The entry in respect of
concerned N.C. is on page No. 243, which is in handwriting
of PSO Madrewar. He identified the handwriting. The said
entry is marked at Exhibit-57. He has brought with him the
chapter case register for the year 2007. The entry in
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respect of Chapter Case against Ghansham is on page No.
177. It is in his handwriting. The entry is marked at Exh.
58. Accused before the Court is the same. Interim bond
from Ghansham was obtained.
The questions asked to this witness during
cross examination are relates to the motive for commission
of offence. However, in the present case, since there is
direct evidence in the nature of eye witnesses motive
looses its importance. Therefore, in earlier inquiry into N.C.
No. 241/2007 whether anything adversed to Ghansham had
come on record is not important. The evidence of PW-12 is
important since Sunita lodged the N.C. against accused
stating that, she had apprehension to danger of her life
from the accused – Ghansham.
34] The prosecution examined Subhash Bhimrao
Suryawanshi as PW-13. In his examination in chief, he
stated that, he was attached to Vazirabad Police Station
during the year 2007 to 2008. API Mr. Ghuge was attached
to Vazirabad Police Station. He knew him as he worked
with him. He further stated that, on 13.09.2007, API Mr.
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Ghuge was on duty. On that day at about 11.10 a.m. PHC
Allewar informed the Police Station on phone that, in the
Female Ward No.10 of the Government Hospital, one
person has attempted to cause death of two ladies. He was
there in the Police Station. Accordingly, he went to the
Hospital along with API Mr. Ghuge by giving information to
the Senior Officer. They went to the Government Hospital
and reached to Ward No.10 and found that, an axe stained
with blood. They saw pool of blood on the floor and also
bed stained with blood, pair of sleepers was also there. API
Mr. Ghuge and PI Mr. Sonwane asked him to stay on the
spot in protection of the spot. Accordingly, he remained on
the spot. A panchanama of scene of offence was prepared
th
in his presence. He further stated that, on 19 he carried
the seized articles to CA, Aurangabad. All those articles
were sealed and the seal was intact. A forwarding letter
was given to him which was signed by Deputy
Superintendent of Police Mr. Sharma. He reached those
articles to the office of C.A., obtained acknowledgment of
O/C and produced the O/C at Vazirabad Police Station. The
articles were produced in the office of C.A. in the same
conditions in which he had received those articles. The O/C
bears signature of Shri Sharma, Dy. S.P. He identified his
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signature. The acknowledgment bears the rubber seal of
the office of CA, Aurangabad. The O/C is marked at Exhibit
60.
The evidence of PW-13 is important to the
extent that, on the date of incident at about 11.00 a.m. the
information was received from the Police Head Constable
Mr. Allewar i.e. PW- 8 informed that, one person has
attempted to cause death of two ladies in Ward No. 10 of
the Government Hospital and then this witness
accompanied API Mr. Ghuge to the Hospital. During his
cross examination, the defence counsel has not brought
anything substantial on record, which can be said to be
useful to the defence.
35] PW-16 [Sayed Shaiuddin Syed Mohd. Ali gave
inquest panchanama of dead body of Sunita.
36] We have discussed in the foregoing paragraphs
the evidence of all the prosecution witnesses. The evidence
of Laxmibai Mahajan, who was eye witness to the incident,
clearly shows the involvement of the accused in killing
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Gayabai and Sunita. The presence of the PW-15 Laxmibai,
on the relevant date and time in Ward No.10 of the
Government Hospital, has been convincingly proved by the
prosecution. Exhibit-84, which is on record, relates to the
names of the patients in ward No.10 at the relevant date.
The registration number and the addresses of the patients
are entered in the said register, and the certified true
copies signed by the concerned Medical Officer is produced
on record. At serial No.15 name of Gayabai is appearing.
Against her name her address of Ganeshnagar is given and
the date of admission is mentioned as 06.09.2007. The
name of Laxmibai i.e. PW-15 is appearing in the said list,
her address is shown ‘Tamsa Hadgaon’ and her date of
admission is given as 11.09.2007. Duty list of Eye Ward
was also produced before the Court, which is duly certified
by the Medical Officer. The evidence of PW-15 and PW-9,
who are actual eye witnesses to the incident, gets
corroborated from the evidence of each other. There are
other prosecution witnesses, who immediately arrived to
the spot and saw that, Gayabai lying on the cot with injuries
and Sunita was lying on floor in pool of blood in Ward No.
10. There is overwhelming evidence brought on record to
prove guilt of the accused. The accused was caught hold
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34
on spot itself. Axe and knife were recovered from the spot.
There is enough corroboration to the direct evidence
brought on record by the prosecution. The medical
evidence unequivocally indicates that the death of Gayabai
and Sunita was homicidal and injuries are on vital part.
Therefore, we have no hesitation to hold that, the appellant
killed Gayabai and Sunita by using axe and the same is
produced by the prosecution beyond reasonable doubt.
The findings recorded by the trial Court are in consonance
with the evidence on record.
37] The trial Court ordered that, the accused
Ghanshyam shall undergo life imprisonment for committing
the murder of Gayabai and for committing murder of Sunita
Ghansham Jondhale, which shall not be less than 28 years.
In order to find out whether the sentence of minimum 28
years ordered by the trial Court is appropriate or otherwise,
it would be worthwhile to make reference to the
observations of the Supreme Court in the case of Jai
1
Kumar Vs. State of M.P. , it is observed that, Justice is
supreme and justice ought to be beneficial for the society
so that the society is placed in a better off situation. Law
1. [1999] 5 SCC 1
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courts exist for the society and ought to rise up to the
occasion to do the needful in the matter, and as such ought
to act in a manner so as to sub-serve the basic requirement
of the society. It is a requirement of the society and the
law must respond to its need. The greatest virtue of law is
its flexibility and its adaptability, it must change from time
to time so that it answers the cry of the people, the need of
the hour and the order of the day.
38] In the present case, the appellant went to the
Government Hospital with axe and knife and committed
murder of Gayabai and Sunita. The evidence brought on
record by the prosecution leaves no doubt in the mind that,
the appellant went fully prepared to kill Gayabai and Sunita.
The act of the appellant was cold blooded murders. The
manner in which Gayabai and Sunita were killed by
inflicting blows on their vital part in the Government
Hospital, not only created terror in the Government
Hospital, which is a public place, but the said act must had
impact on the society. Therefore, the trial Court keeping in
view the Judgment of the Supreme Court in the case of
2
Hari Ghos Vs. State of West Bengal , rightly held that
2. 2009 All MR [Cri.] 3097
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36
imprisonment for life means through out the life of the
accused thereby the period of his imprisonment shall not be
less than 28 years.
39] In our opinion, the trial Court has rightly
ordered that, the appellant shall undergo minimum 28
years sentence. The Supreme Court in the case of Mulla &
3
another Vs. State of Uttar Pradesh in the facts of that
case, held that, punishment of life sentence to the
appellant – accused must extend to their full life, subject to
any remission by Government for good reasons.
40] The Hon’ble Supreme Court in the case of
4
Mohd. Jamiludin Nasir Vs. State of West Bengal in
para 175 observed that, the sentence to be awarded should
achieve twin objectives: [a] Deterrence, [b] Correction. The
court should consider social interest and consciousness of
the society for awarding appropriate punishment.
Seriousness of the crime and the criminal history of the
accused is yet another factor. Graver the offence longer
the criminal record should result severity in the
3. [2010] 3 SCC 508
4. [2014] 7 SCC 443
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37
punishment. Undue sympathy to impose inadequate
sentence would do more harm to the public. Imposition of
inadequate sentence would undermine the public
confidence in the efficacy of law and society cannot endure
such threats.
41] In the light of the discussion in the foregoing
paragraphs, we are of the considered view that, appeal
sans merit, hence dismissed. We quantify Rs.3000/-
[Rs.Three Thousand only] towards fees and expenses of the
learned appointed counsel Mr. Shriniwas Kulkarni.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S. SHINDE, J.]
DDC
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