Cr.Appeal No.535/2009 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.535 OF 2009 Kundlik Pandurang Jadhav Age 51 years, Occ. Agriculture, R/o June Shimpora, Tq.Karjat, District Ahmednagar ..Appellant Versus 1.The State of Maharashtra 2.Rangubai Dattatraya Jadhav Age 40 years, Occ. Agriculture, R/o June Shimpora, Tq.Karjat, District Ahmednagar ..Respondents ... Shri Joydeep Chatterji, Advocate (amicus curiae) for appellant and Shri D.V.Tele, Additional Public Prosecutor for respondent No.1. Respondent No.2 - Served. ... CORAM : P.V.HARDAS & A.V.POTDAR, JJ. Dated : February 4, 2011 ORAL JUDGMENT : (Per HARDAS, J.) :- 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.10,000/-, in default of which, to undergo simple imprisonment for one year, by the learned Additional Sessions Judge - III, Ahmednagar, by judgment dated 22.8.2009, in Sessions Case No.21 of 2007, by this appeal questions the correctness of his conviction and sentence. Cr.Appeal No.535/2009 2 2. Such of the facts which are necessary for decision of the appeal may briefly be stated thus :- PW 9 Prakash Khandekar, PSI, who was attached to the concerned Police Station, recorded a complaint of PW 3 Amol, at Exhibit 13, on 30.10.2006. After registration of the said crime, investigation came to be entrusted to PW 9 PSI Khandekar and accordingly PSI Khandekar undertook the investigation of Crime No.129 of 2006. He accordingly visited the scene of offence and drew the inquest panchanama of deceased Dattatraya, Exhibit 29, in the presence of panch witnesses. Dead body of deceased Dattatraya was referred for post mortem examination and thereafter PW 9 PSI Khandekar drew the scene of offence panchanama at Exhibit 24, in the presence of PW 7 Ravindra. From the scene of the offence, he took sample of ordinary mud and blood mixed mud. The clothes on the person of deceased were seized vide seizure memo at Exhibit 18, in the presence of PW 5 Vishnu. Accused came to be arrested on the same day and clothes on his person came to be seized vide seizure memo at Exhibit 31. The arrest panchanama of the accused is at Exhibit 30. During the custodial interrogation on 3.11.2006, the accused expressed his willingness to point out the place where an Axe was hidden and accordingly, memorandum Exhibit 21 came to be recorded in the presence of PW 6 Sambhaji. The accused led the police and panch and produced an Axe, Article 6, which came to be seized vide panchanama Cr.Appeal No.535/2009 3 Exhibit 22. Dead body of deceased Dattatraya was referred for post mortem examination and post mortem came to be conducted by PW 8 Dr. Subhash Shinde, who noticed the following external injuries. " 1. CLW over right temporal bone extending downwards over right maxillary region. 10x3x2 cm. bone deep in front of right ear. 2. CLW over chin bone deep, 10x4x3 cm. in size, semicircular in shape. 3. CLW over left side of neck 2 cm, above left clavicle, radially 3x3x3 cm. in size, circular in shape." On internal examination, he noticed fracture of right temporal bone and fracture of right maxilla. He also noticed contused lacerated wound over temporal bone extending downwards over right maxilla 10x3x2 cm in size, bony deep, intracranial haemorrhage with subdural haemotoma over right temporal region 3x 2 cm in size. PW 8 Dr. Shinde opined that the cause of death was due to haemorrhagic as well as neurogenic shock due to fracture of right temporal bone leading to intracranial haemorrhage and subdural haemotoma. Post mortem report is at Exhibit 26. 3. Further to the completion of the investigation, charge sheet against the appellant came to be filed. On committal of the case to the Court of Sessions, the trial Court vide Exhibit 3, framed a charge against Cr.Appeal No.535/2009 4 the appellant for the offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 4. The prosecution in support of its case examined nine witnesses while the defence of the appellant was of total denial. The trial Court upon appreciating the evidence of the prosecution witnesses, convicted and sentenced the appellant as aforesaid. 5. Before we deal with the submissions advanced before us by Shri Chatterji, learned Advocate (amicus curiae) for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. PW 1 Nana states that on the day of the incident at about 9 am, deceased Dattatraya had kept the rubber tube and wet clothes, namely; towel and underpant near his house. PW 1 further states that those clothes were kept on a branch of Almond tree for drying and thereafter deceased Dattatraya had gone towards village Bhigwan. PW 1 Nana states that near his house a river flows and people use rubber tubes to swim across the river and leave their wet clothes and rubber tubes near his house. He further states that he had gone to his agricultural land and had returned in the evening and thereafter had slept on the platform of his house. His wife and son, PW 2 Hanumant were sleeping inside the house. PW 1 Nana states that he was awakened from the sleep on hearing some noise and therefore, in the illumination of the flash light, he noticed the appellant assaulting deceased. He states that he noticed that the Cr.Appeal No.535/2009 5 appellant had dealt two blows of Axe on the deceased. Nana further states that he requested the appellant not to assault the deceased. According to PW 1 Nana, the appellant had dealt one blow of Axe near the right ear while two other blows were dealt on the chest of the deceased Dattatraya. Nana claims to have cried for help and requested his son to come outside the house. Meanwhile, Nana had apprehended the accused. Nana further requested his son PW 2 Hanumant to call the relatives of deceased Dattatraya as well as the appellant. Nana also states that the appellant had confessed before him that the appellant had assaulted deceased Dattatraya. Upon arrival of the relatives of deceased, deceased was taken in a bullock-cart to the hospital. In the cross-examination several questions were put in respect of the relations of deceased and the accused. However, nothing of substance has been elicited in the cross examination, which would, in any manner, reflect upon the credibility of this witness. Thus, we found from the evidence of this witness that this witness has remained unshaken on the material aspect of his evidence that he had seen the deceased in illumination of the flash light assaulting the deceased and that the accused was apprehended by PW 1 Nana. 6. Evidence of PW 1 Nana is amply corroborated by the evidence of his son - PW 2 Hanumant. PW 2 Hanumant states that on the day of the incident, he was awakened on hearing the cry of his father and had accordingly, rushed out of the house and had noticed that his father Cr.Appeal No.535/2009 6 PW 1 Nana had apprehended the appellant. He further states that Nana had requested him to go to the house of deceased Dattatraya and the accused and to bring their relatives. Hanumant states that he had accordingly gone to the house of deceased Dattatraya and had brought the relatives of deceased. Hanumant also states that he had heard the accused confessing that he had assaulted deceased Dattatraya. In the cross-examination, it was elicited that he had made no attempts to assist his father in apprehending the accused. Hanumant has admitted that the accused was making attempts to escape from the clutches of PW 1 Nana. However, an admission has been elicited in the cross examination that his father PW 1 Nana had told him not the worry about him and go to the house of accused and deceased and accordingly he had gone to their houses. Nothing of substance has been elicited in the cross examination of this witness. 7. PW 4 Rangu - wife of deceased Dattatraya states that Hanumant had given a call to her by informing her that her husband Dattatraya was assaulted by the appellant. She accordingly had gone to the scene of the incident and had noticed her husband lying on a ground in a pool of blood. She further states that she has noticed that PW 1 Nana had apprehended the appellant and PW 4 Rangu had asked PW 1 Nana as to who had assaulted Dattatraya and the appellant/accused in the meanwhile admitted that he had assaulted Dattatraya. Injured Dattatraya was thereafter taken to the hospital for treatment but he ultimately Cr.Appeal No.535/2009 7 succumbed to the injuries. 8. The prosecution has also examined PW 8 Dr.Shinde, Medical Officer, who has referred to the injuries and has also proved the post mortem report and has also proved the opinion expressed by him regarding cause of death of Dattatraya. 9. The prosecution has then examined PW 6 Sambhaji, a panch witness to the disclosure statement made by the accused. PW 6 Sambhaji states that during custodial interrogation, the appellant had made a disclosure statement, which was reduced into writing at Exhibit 21. Pursuant thereto, the accused had led the police and the panch and had produced an Axe - Article 6, which came to be seized vide panchanama Exhibit 22. The report of the Chemical Analyser at Exhibit 39 shows that the clothes worn by deceased were stained with blood of "O" group and an Axe - Article 6, which was recovered at the behest of the appellant / accused was also found stained with blood of "O" group. In that light of the matter, therefore, we have no doubt in concluding that the appellant/ accused had produced the weapon by which the injuries had been inflicted upon deceased. 10. We, therefore, find that there is overwhelming evidence against the accused. Even if we accept the contention of the learned counsel for the appellant that the prosecution has not been able to Cr.Appeal No.535/2009 8 establish and prove the extra judicial confession, alleged to have been made by the accused to the witness, we find that there is other overwhelming evidence which establishes beyond doubt that it was the appellant/accused who had committed murder of deceased Dattatraya. In that light of the matter, therefore, the appeal filed by the appellant deserves to be dismissed. 11. Before parting with the judgment, we must place on record our appreciation for the efforts taken by Shri Joydeep Chatterji, learned Advocate (amicus curiae) for the appellant in arguing the present appeal. We accordingly, quantify fee payable to learned counsel Shri Chatterji at Rs.5,000/- (Rs.Five Thousand only/-). 12. This Criminal Appeal, therefore, being sans merit, is dismissed confirming the conviction and sentence. (A.V.POTDAR,J.) (P.V.HARDAS, J.) ... akl