( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 310 OF 2010 Mewa s/o Zabra Zaware, R/o Abadi, Po. Ratnapur, Tq. Zirnya, Dist. Khargaon (M.P.), at present, r/o Shankarrao Nagar, Plot No. 22, District Jalgaon. APPELLANT VERSUS The State of Maharashtra RESPONDENT .... Mr. G.L. Deshpande, advocate (appointed), for the appellant. Mr. B.J. Sonawane, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd December, 2010] ORAL JUDGEMENT : 1. This appeal is directed against judgement rendered by learned Sessions Judge, Jalgaon, in Sessions Case No. 214/2009 whereby the appellant is convicted for the offence punishable under section 304 Part-I of the I.P. Code and sentenced to suffer rigorous imprisonment for ten (10) years alongwith fine of Rs. 2000/-, in default to suffer rigorous imprisonment for ten (10) months. ( 2 ) 2. The prosecution case, stated briefly, is that the appellant was in casual employment of a contractor at Construction Work in Shankarnagar locality, Jalgaon. He alongwith his wife - PW1 Rajwanti and minor son Rohit used to reside in a small hut like shed of corrugated zinc sheets at the construction site. He was addicted to liquor drinking. He used to frequently beat the wife (PW Rajwanti) after returning home in drunken condition. She was fed-up with the appellant due to harassment, illtreatment and beating. She had left his company for some period prior to the incident but since about six (6) months before the incident, the appellant and his wife (PW Rajwanti) had migrated to Jalgaon to earn their livelihood. In the night of 29th September, 2009, PW Rajwanti was sleeping inside the small tin-shed alongwith the minor son. At about 11.15 p.m., the appellant came home in drunken condition. He caught hand of the wife and awoke her. He told her that he will not keep her alive. She was scared due to the threat. He further told her that she may call anyone, yet, he would kill her. The frightened wife (PW Rajwanti) started going behind her mother who had gone out of the house with a view to seek some help. The appellant went after the wife. She started running and calling for help. The ( 3 ) appellant chased her with a crowbar in his hand. Her mother then went to rescue her. The appellant assaulted her mother (deceased Bindabai) by means of the crowbar. Her mother fell down at the place in injured condition and died instantaneously at the spot. An FIR was thereafter lodged by PW Rajwanti against the appellant. The appellant was arrested. The dead-body of his mother-in-law i.e. Bindabai was sent to the Civil Hospital fro post-mortem examination. The crowbar was recovered from the place of the incident. A spot panchanama was drawn. A blood stained shirt and a blood stained pant were recovered from person of the appellant under a panchanama. On basis of the material gathered during course of investigation, the appellant was chargesheeted for the offence punishable under section 302 of the I.P. Code. 3. The appellant denied truth into the accusations and pleaded not guilty in response to the charge framed vide Exhibit-2. According to the defence version, the appellant had no motive to eliminate deceased Bindabai i.e. mother-in- law nor he assaulted her in the relevant night. It was his defence that deceased Bindabai accidentally sustained the head injury due to her striking against an electric pole situated in the proximity of the Work site. It is alleged that the ( 4 ) appellant is framed in a false case due to ill-will of his wife and other relatives. Hence, the appellant urged to acquit him from the charge. 4. Considering the evidence adduced by the prosecution, the learned Sessions Judge held that the appellant is proved to have assaulted deceased Bindabai by means of a crowbar but it was not his pre-planned act. The learned Sessions Judge held that the appellant assaulted deceased Bindabai with knowledge that her death may occur due to the assault by means of a crowbar. The appellant, however, had no intention to kill her. In keeping with such findings of facts, the impugned judgement of conviction and sentence came to be rendered. 5. Mr. Deshpande strenuously argued that the solitary version of PW Rajwanti is insufficient to infer complicity of the appellant. He contended that PW1 Rajwanti had developed hatred towards the appellant and, therefore, she is not a credible witness. It is argued that the defence of the appellant is more probable in view of the fact that the construction work was going on nearby the hut (shed) and there was an electric pole by the side of the construction site. It is contended that the wife of the appellant gave the FIR in ( 5 ) order to frame him in a false case. It is argued, therefore, that the impugned judgement of conviction and sentence is liable to be reversed. Per contra, the learned APP supports the impugned judgement. 6. The question which requires determination in this appeal is : "Whether it is proved that the appellant assaulted deceased Bindabai, his mother-in-law in the relevant night, by means of a crowbar and with knowledge that the injuries caused by him may result into her death ?" 7. In support of its case, the prosecution examined in all ten (10) witnesses. Out of these ten (10) witnesses, PW1 Rajwanti is the only eye witness of the alleged incident. No other direct evidence is available to infer that the appellant assaulted his mother-in-law in the relevant night. That may be so, yet, presence of the independent eye witnesses is not at all expected in the given fact situation. For, the incident occurred at about 11.15 p.m. at the place of the construction site and in the premises in front of the residential hut of ( 6 ) the appellant. It is well settled that even testimony of a single witness may be sufficient to establish guilt of an accused, if the Court believes his version and the version as the potentiality to prove the guilt of an accused. It is but natural, therefore, that version of PW Rajwanti will have to be duly appreciated. 8. Coming to the version of PW1 Rajwanti, it is explicit that she is a rustic and poor woman. She and her family members used to reside at village Kalamka in Madhya Pradesh. The poverty striken family members used to go from place to place for earning livelihood. She narrated the incident which took place in the relevant night. Her version purports to show that she was under spell of slumber inside the house alongwith the minor son when the appellant returned home in drunken condition. She deposed that the appellant woke her and told her that he will not spare her and would kill her. She was frightened. He dealt a fist blow on her mouth and, therefore, she ran out of the house. Her version purports to show that the appellant picked up a crowbar from nearby place of the construction site and ran after her. Her version further shows that while her mother was coming to her rescue from behind of the appellant, all of a sudden, he ( 7 ) turned backwards and went near her mother. He then dealt a blow of crowbar on her head. After she fell down, he dealt another blow of the crowbar on her chin. He thereafter dropped the crowbar and fled away towards the agricultural land in which Jawar crop was standing. PW Rajwanti raised hue and cry. Some persons gathered at the place. She narrated to them that her mother was killed by the appellant. She thereafter went to house of her real elder sister alongwith some of the public members while some of the public members were standing around the dead-body of her mother at that place. She informed her elder sister and the brother-in-law about the incident. Her brother-in-law and the sister approached the police. The police lateron apprehended the appellant in the proximity of railway station. She identified the yellow coloured saree and red coloured blouse of her mother from amongst the property articles. She further identified the shirt and pant of the appellant (article "C") as the same clothes which were put on by him in that night. 9. Cross-examination of PW Rajwanti reveals that she does not properly understand Marathi. Her version reveals further that she and her family members speak "Nimadi" language in the house. The witness appears to be simpleton. ( 8 ) She was unable to locate the period of her marriage and other details. She voluntarily disclosed that initially, the appellant wanted to eliminate her son. Her version purports to show that the appellant used to suspect extramarital relationship between herself and her brother-in-law. It is probable that the appellant was obsessed with suspicion regarding the paternity of the minor son. She denied the suggestion that her mother gave dash to an electric pole and fell down on rough surface where large number of big stones were lying at the construction site and as such, was injured. She denied the suggestion that the appellant was so heavily drunken in that night, so much so that he was unable to properly stand up. 10. So far as the defence of the appellant is concerned, there is absolutely nothing on record to show that the electric pole bore stains of blood or that the stones at the places were also found to bear stains of blood. It is highly improbable that at the late hours, around 11.30 p.m., the old woman i.e. deceased Bindabai went running towards an electric pole and banged her forehead on the same, due to accident. It is pertinent to notice that PW7 Dr. Sachin Ahir duly proved recitals of the post-mortem report (Exh-18). His version ( 9 ) coupled with the recitals of the post-mortem notes go to show that there was a contused lacerated wound of 5 cm x 3 cm x 1 cm on forehead of deceased Bindabai. That was a bone-deep injury. There was another contused lacerated wound of 1 cm x 1 cm x 1 cm size on her chin. He noticed palpated mandible fracture. It requires great memorandum and velocity to cause such a bone-deep head injury even if a person strikes on hard surface of an electric pole. The old woman could not have, in ordinary course of nature, run to the place in such a high speed that the momentum as required to cause such an injury was gained. Secondly, the fracture of the mandible shows that the story narrated by PW1 Rajwanti is more probable. The second injury could not be caused only due to the fall on hard surface and as stated before, there is no corroboration to the defence put forth by the appellant. It is brought on surface of the record, no doubt, that construction material was lying nearby the place of incident. That itself, however, does not substantiate the defence of the accidental injuries caused to deceased Bindabai. 11. The FIR (Exh-6) was lodged in the same night. The FIR was registered at 00.45 hours at Shanipeth Police Station vide Crime No. 35/2009. The incident of assault took place at ( 10 ) about 11.30 p.m. The elder sister and brother-in-law of PW Rajwanti arrived at the place of the incident after about half an hour. Considering the promptitude in filing of the FIR, it is difficult to say that false story was cooked up by PW Rajwanti in order to frame her husband. Though he was often beating her, though he was returning home in drunken condition and used to harass her, yet, she had continued to reside with him. In other words, there was no bitter enmity between the spouses. Obviously, her conduct and the promptness with which the FIR was lodged also goes to prove that the appellant assaulted her mother in that night with a crowbar. 12. The testimony of PW2 Bandu corroborates seizure panchanama (Exh-9). It is pertinent to note that at about 2 a.m., in the same night, the appellant was arrested and his identity card, pant and shirt were seized vide the panchanama (Exh-9). The witness identified the said clothes and the identity card (articles "C" and "D", respectively). He admitted that he had previously tendered evidence as a panch witness on 2/3 occasions. That does not, however, make him unbelievable witness. It is but natural that at odd hours of the night, the police needed help of a known panch witness for the purpose of effecting seizure of the clothes of the ( 11 ) appellant. 13. Similarly, the spot panchanama (Exh-11) is duly corroborated by PW3 Gangadhar. He deposed that illumination of the light was available from the electric pole situated in the proximity of the spot of the incident. 14. The versions of PW4 Vimalbai and PW5 Sumanbai are not of much significance. They narrated that PW Rajwanti told them about the incident of the assault. The hearsay evidence of these witnesses cannot be considered. However, their versions go to show that a crowbar was found lying near the dead-body of Bindabai. It has come on record that PW Sumanbai and her husband used to give a word of advice to the appellant. They had urged him to behave properly. Her husband had attempted to search for a job to render financial assistance to the appellant. 15. From version of PW6 Dr. Meena, it may be gathered that the appellant was clinically examined by her at about 4.30 p.m. on 29th September, 2009. She noticed that his mouth was smelling of alcohol and the pupils were dilated. She issued Medico-Legal Certificate (Exh-16) on basis of such ( 12 ) observation. It is probable that the appellant was not under influence of alcohol when he was clinically examined. The version of the Medical Officer further shows that there was no equipment available to analyze the breathing. At the same time, it cannot be overlooked that during cross-examination of PW Rajwanti, it has been specifically suggested to her that the appellant was so heavily drunken that he was unable to properly stand up. Needless to say, there is no denial to the fact that he had returned home in a drunken condition. 16. The remaining evidence of the prosecution need not be discussed in detail. PW8 Suresh is a retired Assistant Sub-Inspector of Police. He had carried the muddemal articles to the office of the Assistant Chemical Analyser. The report of the Assistant Chemical Analyser corroborates the fact that the crowbar, saree and blouse of deceased Bindabai, full pant and shirt of the appellant bore blood stains of human origin. The blood group of the blood stains was determined as group "B". It, therefore, appears that when the appellant was caught in the same night, within a short span of period after the incident, his shirt and pant bore blood stains of the group which was corresponding to the group of blood of deceased Bindabai. This is a glaring circumstance. ( 13 ) It rules out the probability of her accidental fall on the electric pole or on the ground nearby the construction site. The testimony of PW10 PSI Vilas Kulkarni reveals the steps taken during course of the investigation. 17. The learned Sessions Judge has duly considered the relevant evidence placed on record. The findings recorded by the learned Sessions Judge cannot be regarded as improbable and improper. I am in general agreement with the evaluation of the evidence as done by the learned Sessions Judge. Consequently, I am in general agreement with the findings recorded by him. In this view of the matter, the appeal is without much substance and liable to be dismissed. 18. The learned advocate for the appellant submits that the sentence awarded to the appellant is too harsh. He seeks reduction of the substantive sentence on the ground that the incident occurred at spur of moment when the appellant was in drunken condition. He would further point out that deceased Bindabai came out of the house and attempted to obstruct the appellant though he had no intention to kill her, yet, eventually, he turned about and assaulted her with an intention to stop her from coming forward. It appears that ( 14 ) the substantive sentence of ten (10) years' rigorous imprisonment is awarded to the appellant without considering the attending circumstances. The proper sentence to award would be of seven (7) years' rigorous imprisonment instead of ten (10) years' rigorous imprisonment. 19. In the result, the appeal is dismissed. The impugned judgement of conviction rendered by the learned Sessions Judge in Sessions Case No. 214/2009 is confirmed. However, the substantive sentence of ten (10) years' rigorous imprisonment is reduced to period of seven (7) years of rigorous imprisonment. The appellant to undergo remaining part of the substantive sentence and to pay the fine amount as directed by the Sessions Court. [V.R. KINGAONKAR] JUDGE NPJ/criapl310-10 ( 15 )