- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.370 OF 2008 Rajmal s/o Hiraman Chavan, Age 45 years, Occ. -- R/o Takali, Tq. Muktainagar, District Jalgaon ... APPELLANT VERSUS The State of Maharashtra through Police Station, Muktainagar (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENT ----- Mrs. Shilpa Jahagirdar, Advocate for the appellant (appointed) Shri K.S. Patil, A.P.P. for the respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 11th March, 2010. ORAL JUDGMENT (PER SHRIHARI P. DAVARE, J.) : 1. The present appeal is directed against the judgment and order rendered by learned Adhoc District Judge-1 & - 2 - Additional Sessions Judge, Jalgaon in Sessions Case No. 18/2006, dated 15.11.2007, convicting the appellant (original accused) for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to suffer R.I. for three months. 2. The factual matrix of the prosecution case which can be summarised as under : 3. It is the case of prosecution that P.W.10 P.I. Dnyandeo Gavare was attached to Muktainagar Police Station as P.I. in between June 2004 to July 2006 and on 28.11.2005, one Baliram Chavan, Police Patil of village Takali informed him on telephone that one Rajmal Hiraman Chavan, i.e. accused herein has killed his wife Ukhibai @ Savita and was tying to keep her corpse in a bundle near the well of one Ajmal Chavan in the same village and he also informed that the said fact was narrated to him by one Sanjay Ajmal Chavan and Pawan Sukhsing Chavan. Accordingly, P.W.10 P.I. Gavare informed to Medical Officer, Rural Hospital, Muktainagar and asked him to come to the spot and he also proceeded to the spot of the incident. After arrival on the spot of the incident, they noticed that accused Rajmal was sitting - 3 - near one dead body near the well in the field of Ajmal Chavan and on enquiry, he disclosed that it was the corpse of his wife. Accordingly, P.W.10 P.I. Gavare called two male and one female panchas and prepared the inquest panchanama of the said dead body (Exhibit 12) in presence of P.W.1 Santribai Chavan and while drawing the inquest panchanama, they noticed that a wooden rafter was fixed in the anus and vagina of the said victim. Thereafter, P.W.10 P.I. Gavare took the complaint of police patil i.e. P.W.4 Balbhim Chavan which is marked as Exhibit 18 and offence was registered against the accused herein under C.R. No. 134/2005 under Section 302 of the Indian Penal Code on 28.11.2005 at about 18.30 Hrs. 4. P.W.9 Dr. Pandhari Bawaskar conducted the post mortem upon the said dead body of Savita and produced the post mortem report (Exhibit 33). While conducting the post mortem, the medical officer P.W.9 Dr. Bawaskar removed the wooden rod inserted in the vagina of dead body and handed it over to P.W.10 P.I. Gavare. P.W.10 P.I. Gavare prepared the spot panchanama in presence of panch P.W.2 Bhagwan Kavare at Exhibit 14. Thereafter the accused herein came to be arrested in presence of panch witness P.W.3 Vasudeo Chavan under the arrest panchanama (Exhibit 116). - 4 - 5. It is also the case of prosecution that, during the investigation, the accused herein made disclosure statement to show the place where the axe was concealed and the said statement was recorded in presence of panch P.W.8 Dipak Kandelkar (Exhibit 28) and thereafter the accused led the police personnel and panchas to the spot on the basement of the Satpuda mountain in the stream namely Kaban Bavdi near the place where photos of Lord and Goddess were kept and removed one blood stained axe which was concealed below the bush at a distance of 15 feet from the said spot and produced it and same was seized under the memorandum panchanama (Exhibit 28). Moreover, the police personnel also collected samples of plain soil and blood stained soil from the said spot and samples of blood stains and same were seized under memorandum panchanama (Exhibit 28). So also the accused showed the spot where he put the wooden log in the vagina of his wife and blood was found on the said spot and the samples of blood stained soil as well as simple soil were collected from the said spot and same were seized under the said panchanama. Moreover, the blood stained hammer used for inserting the wooden rod as aforesaid, was also seized from the said spot under the memorandum panchanama (Exhibit 29). - 5 - 6. It is further the case of prosecution that thereafter P.W.10 P.I. Gavare sent the seized muddemal articles as well as clothes of the accused to C.A. Office, Nasik along with forwarding letter for examination purpose (Exhibit 36). During the course of investigation, P.W.10 P.I. Gavare recorded statements of witnesses as well as gave letter to Tahsildar, Muktainagar to prepare the map of the place of the incidence (Exhibit 37) and map of the spot was prepared accordingly, which is marked as Exhibit 38. Thus, after completion of investigation, it was transpired that accused killed his wife suspecting her fidelity and, therefore, charge sheet was filed against the accused before learned Judicial Magistrate, First Class, Muktainagar. However, since the offence involved therein was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Muktainagar committed the said case to the Court of Sessions, Jalgaon. Accordingly, the learned Adhoc District Judge-1 & Additional Sessions Judge framed a charge against the accused for the offence punishable under Section 302 of the Indian Penal Code at Exhibit 5 and the accused pleaded not guilty to the same and claimed to be tried. 7. To substantiate the charges levelled against the - 6 - accused herein, the prosecution examined inasmuch as 10 witnesses as mentioned below : PW1 Santribai Chavan,, sister-in-law of victim and panch to inquest panchanama (Exhibit 12). PW2 Bhagwan Kavare, panch to spot panchanama (Exhibit 14) PW3 Vasudeo Chavan, panch to arrest panchanama (Exhibit 16) PW4 Baliram Chavan, Police Patil and complainant, who lodged the F.I.R. (Exhibit 18) PW5 Sanjay Ajmal Chavan, who gave information to police patil and before whom accused made extra-judicial confession. PW6 Gulab Mango Chavan, who noted the presence of dead body on the shoulder of othe accused. PW7 Subhash Chavan, brother of the accused, in respect of last seen the accused and victim together. PW8 Dipak Kandelkar, panch to memorandum panchanama (Exhibits 28 & 29) PW9 Dr. Pandhari Bawaskar, who conducted post mortem and produced the post mortem notes at Exhibit 33. PW10 P.I. Dnyandeo Gavare, investigating officer. 8. The defence of the accused was of total denial and in the statement recorded under Section 313 of the Code of Criminal - 7 - Procedure, the accused stated that because of dispute of landed property with the brother, he falsely implicated the accused in this case and accordingly, the accused claimed to be innocent, but did not examine any defence witness. 9. In order to deal with the submissions advanced by learned counsel for the appellant and learned A.P.P. for the respondent, we feel it necessary to advert to the material evidence adduced/ produced by the prosecution on record and in the said context, coming to the deposition of P.W.4 Baliram Chavan, who stated that, he was working as police patil of village Takali since last 15 to 16 years and he knew the accused Rajmal Hiraman Chavan as well his wife Ukhibai @ Savita Chavan and the accused had contracted second marriage i.e. Gandharwa Vivaha with her. He stated that, Ukhibai cohabited with accused for about 7 to 8 years, but thereafter since the accused gave her ill-treatment, she resided with her parents and had come back before 3 to 4 days of the incident. He also deposed that, on the date of incident at about 2.00 p.m. one Sanjay (P.W.5) and Pawan Chavan came to him from village and Sanjay informed him that accused Rajmal Chavan has brought one bundle tying something and kept it on the heap of clay near the well in his field and Sanjay further told him that he - 8 - found blood stains upon the person of the accused as well as saree wherein something was wrapped as well as Sanjay told him that on enquiry with the accused what was kept in the bundle, accused told that he had wrapped the dead body of his wife in the bundle. P.W.4 Baliram Chavan further stated that he called brother of the accused namely Subhash Chavan and went to the field of Sanjay Chavan along with him, as well as P.W.4 Baliram Chavan, Subhash i.e. P.W.5 and Pawan went to the field and found that the body of the wife of the accused was wrapped in one bundle and accused was sitting near the said dead body. Thereafter P.W.4 Baliram Chavan, police patil, asked Sanjay Chavan and Pawan Chavan to keep watch on the dead body and proceeded to Police Outpost, Kurha. P.W.4 Baliram Chavan further stated that he narrated the aforesaid incident to police arrived on the spot, which was recorded and complaint was registered at Exhibit 18 under C.R. No.134/2005 under Section 302 of the Indian Penal Code at about 18.30 Hrs. on 28.11.2005. P.W.4 Baliram Chavan also states that when he went to the spot along with the police personnel, police released the corpse of Savita and accordingly, inquest panchanama of the said dead body was prepared in presence of panch witness P.W.1 Santribai Chavan and injuries on the face, head and hands of the said corpse were noted. The lady - 9 - panch inspected the private parts of the body and found that one wooden rafter was fixed therein. 10. During the cross-examination, an omission was elicited regarding the manner in which the first wife of the accused died, but it has nothing to do with the incident in question and, therefore, the said omission does not go to the root of the matter. Moreover, P.W.4 Baliram Chavan also stated that victim Ukhibai did not lodge any complaint before him being police patil of the village. Beyond that, there is nothing in the cross-examination beneficial to the case of the accused. 11. Considering the testimony of P.W.4 Police Patil Baliram Chavan, it is evident that, on the information given by P.W. 5 Sanjay Chavan and Pawan Chavan, P.W.4 Baliram Chavan in turn passed on the said application to P.W.10 P.I. Dnyandeo Gavare and went on the spot along with the brother of the accused namely P.W.7 Subhash Chavan and called the police personnel as well as Sanjay and Pawan there and found the dead body of the wife of the accused wrapped in one bundle in the field and accused was sitting near the said dead body and there were injuries upon the head and face of the said dead body and while preparing the - 10 - inquest panchanama, they noticed that a wooden rafter was fixed on the private part of the said dead body and accordingly, he lodged the complaint (Exhibit 18) with the police. Except one minor omission which does not go to the root of the matter, nothing could be elicited in the cross-examination damaging to the case of prosecution and beneficial to the case of accused and, therefore, the credibility of deposition of P.W.4 Baliram Chavan cannot be doubted and same is required to be considered as truthful testimony. 12. That takes us to the deposition of P.W.5 Sanjay Ajmal Chavan, who gave the information to P.W.4 Baliram Chavan, Police Patil and he stated in his testimony that he knows the accused who belongs to his village as well as he knew his wife. On the date of incident, at about 12.00 o’clock to 1.00 noon when he was working in the field, the accused came near the well of his field taking some bundle on his head and asked to give water to him. Hence, P.W.5 Sanjay enquired with the accused that what was wrapped in the bundle and thereupon he told that it is his wife who was killed by him and there were injuries upon the head and shoulder upon the dead body and blood was stained upon the clothes of the accused. Henc,e P.W.5 Sanjay stated that he was frightened by seeing the - 11 - aforesaid condition of the accused and, therefore, went to village and narrated the incident to P.W.4 Baliram Chavan i.e. police patil. Accordingly, P.W.4 Police Patil Baliram Chavan, younger brother of the accused namely Subhash i.e. P.W.7 came near the well of the field of P.W.5 Sanjay and they saw the situation of the spot and thereafter he went to police station along with Pawan and P.W.5 Sanjay and brother of accused namely Subhash stopped there. During cross-examination, an omission was elicited in respect of bringing the bundle by the accused keeping it on his head. Moreover, he also stated that, he neither raised shouts (Aarolya) by seeing the dead body brought by the accused nor disclosed about the said incident to anybody while going to the house of police patil from his field. 13. Considering the testimony of P.W.5 Sanjay, it is evident that the accused made extra-judicial confession before him when Sanjay enquired with him about the bundle brought into his field on his head and thereupon the accused stated that the dead body of his wife was wrapped therein who was killed by him, as well as P.W.5 Sanjay found injuries on the head and shoulder of the said body and clothes of accused were blood stained. Pertinently, there is no cross-examination in respect of the said - 12 - extra-judicial confession made by accused before P.W.5 Sanjay and the omission elicited in the cross-examination was wiped-off by the subsequent question in the cross-examination to which P.W.5 Sanjay replied that he did not raise shouts (Aarolya) by seeing the dead body brought by the accused and, therefore, fact remains that the accused brought the dead body to the field of P.W.5 Sanjay and at the most omission may be construed in respect of bringing the dead body by the accused on his head. Beyond that, nothing was elicited in the cross-examination of P.W.5 Sanjay which was beneficial to the case of the accused and the testimony of P.W.5 Sanjay also has not been shaken in the cross-examination and, therefore, same is required to be considered as trustworthy testimony. 14. In the said context, coming to the testimony of P.W.6 Gulab Mango Chavan, who stated that he and one Kawarsing Chavan were grazing she-goats near the Dam in Vadgaon Shivar and at that time accused brought his wife Ukhibai by wrapping saree upon his shoulder on the Dam and accused asked him to assist him to give his Dhoti, however, P.W.6 Gulab Chavan stated that he did not give his Dhoti to the accused and left the spot and at that time, accused went towards the field of Ajmal Chavan. In - 13 - the cross-examination, he stated that police personnel recorded his statement on the next day of the aforesaid incident. He stated that there was nothing in the hands of the accused when he met P.W.6 Gulab along with the bundle. He further stated that on seeing accused, he did not feel it necessary to disclose something about it to anybody. 15. The testimony of P.W.6 Gulab Chavan corroborates to the deposition of P.W.5 Sanjay and P.W.6 Gulab Chavan also saw the accused brought his wife Ukhibai by wrapping saree upon his shoulder and asked him to assist and to give his Dhoti and when P.W.6 Gulab Chavan declined therefor, he proceeded towards the field of Ajmal Chavan by keeping his wife on shoulder. Accordingly, the testimony of P.W.6 Gulab Chavan can be construed as supporting testimony to the deposition of P.W.5 Sanjay and the said testimony of P.W.6 Gulab Chavan also can be construed as reliable, since it has not sustained any damage in the cross- examination. 16. As regards the last seen together the accused and the victim P.W.7 Subhash Chavan i.e. brother of accused, stated in his deposition that deceased Savita was his Bhabhi i.e. wife of the - 14 - brother and Savita used to reside in the house of her parents at village Parkhed, but since last 4 to 5 days prior to the incident they came to village Takali for residence at their home. He also stated that, on the date of incident in the morning at about 7.00 a.m. accused Rajmal and Savita went to jungle to collect the fuel and accused was armed with axe in his hands at that time. He further stated that, he went to Muktainagar at about 9.00 a.m. and returned back to home at about 5.00 p.m. However, by that time accused Rajmal and his wife Savita did not return back to home, hence they took their search in the jungle when they were not found. He further stated that, on the next day at about 1.30 p.m. police patil of their village Baliram Chavan called him and informed him that P.W.5 Sanjay came to know that dead body of Savita was lying in the field of Ajmal Chavan and accused was present there and hence, requested P.W.5 Subhash Chavan to accompany them. Accordingly, at about 2.00 p.m. P.W.7 Subhash Chavan, P.W.4 Baliram Chavan and P.W.5 Sanjay Chavan went to the field of Ajmal Chavan and found that corpse of Savita was lying near the well on the heap of clay and accused Rajmal was sitting there and the said corpse was wrapped in a saree. Thereafter P.W.4 Police Patil Baliram Chavan asked P.W.7 Subhash Chavan and P.W.5 Sanjay Chavan to stop there and P.W.4 Police Patil Baliram - 15 - Chavan went to police station. Accordingly, police personnel came to the spot in the evening and prepared the panchanama of the dead body as well as prepared spot panchanama. He further stated that, blood was coming out of the mouth of the said dead body and there were injuries upon the face and shoulder. He also stated that he had seen the axe taken by his brother Rajmal in jungle and there was wooden handle to the said axe and identified the Article axe before the Court. He further stated that deceased Savita was second wife of the accused and his first wife died because of fall in the well. He also stated that accused Rajmal was in the habit of consuming liquor and there used to be quarrel between accused and his wife. 17. During cross-examination, he stated that, the accused Rajmal and his wife used to go to jungle daily and even on the day of incident he saw them going towards jungle when he was standing in front of his house. He also stated that, he does not know whether they were talking between themselves while going towards jungle. He could not specify which clothes were wore by them on the said date. He was not on visiting terms to accused daily. He could not specify the ground on which there used to be quarrels between accused and his wife. He further stated that, - 16 - police personnel recorded his statement on the next day of the incident. As regards the rod of the axe, he stated that he cannot state its length. He admitted that, on the date of incident he did not give any information to police patil Baliram Chavan. He further stated that they are having ancestral land at village Takali admeasuring 1.3/4 acre, but same is in possession of his younger brother Bharat and accused Rajmal used to demand his share in the said land, but till today no separate share is given to him in the said land. Hence, suggestion was given to him that since the accused Rajmal was making demand in the land he tried to involve the accused in the present case falsely, but same was denied by him. 18. It is evident from the testimony of P.W.7 Subhash Chavan i.e. brother of accused Rajmal Chavan that on the date of incident in the morning at about 7.00 a.m. he saw accused Rajmal and his wife Savita going towards jungle to collect the fuel and thereafter they did not return back and accordingly, P.W.7 Subhash Chavan saw the accused and victim Savita together lastly and thereafter victim Savita did not return back. On the next day at about 1.30 p.m., he got the message from P.W.4 Police Patil Baliram Chavan and accordingly, he went to the spot of incident at - 17 - about 2.00 p.m. along with him and P.W.5 Sanjay in the field of Ajmal Chavan and found the corpse of Savita lying there near the well on the heap of clay and accused Rajmal Chavan was sitting there. The aspect of last seen together the accused and victim by P.W.7 Subhash Chavan has not been demolished in the cross- examination and the said material circumstance has been proved and established by the prosecution through the testimony of P.W.7 Subhash Chavan, which is incriminating against the accused. 19. That takes us to the testimony of P.W.9 Dr. Pandhari Chindhu Bawaskar, who stated that he is working as medical officer in Rural Hospital, Muktainagar and on 28.11.2005 P.W.10 P.I. Gavare of Muktainagar Police Station called him to the spot to conduct the autopsy of one dead body of one Savita @ Ukhibai Rajmal Chavan and accordingly, he went to the spot because the dead body of Savita was de-composed and was not in a position to shift it to the hospital. He also stated that he conducted the post mortem upon dead body of Savita. On examination, he found following injuries: 1. Bleeding present nostrils pressed. 2. Contusion on right side face 5 x 2 cm. with depressed - 18 - fracture maxilla. 3. Abrasion on neck right side mid way 3 x 2 cm. red. 4. Incised wound on right shoulder 5 x 3 x 2 cm. red fracture head of the humorous right side. 5. Pressed fracture of right side chest 3rd, 4th and 5th ribs with contusion 7 x 5 cm & 8 x 5 cm. red fresh. Wooden rod was kept in anus and vagina. It is post mortem injury. This injury was grievous, whereas all other injuries were ante mortem. Haematoma on right fronto parietal area under scalp 10 x 8 cm. red fresh. Depressed fracture skull right fronto parietal area 7 x 1 cm. linear. Brain was contused, covered with blood clots. Brain coverings ruptured. Spinal cord was torn by the wooden rod at spine L-3 (fracture).” According to his opinion, the cause of death was due to coma due to head injuries with multiple injuries described in Column Nos.17, 18, 20 and 21. Viscera was preserved and examined by him in the hospital, but he did not find any doubtful signs of poison. Accordingly, he stated that he prepared the post mortem notes which are produced at Exhibit 33. He was also - 19 - shown the wooden rod which was removed by him from midway (Article 4) and he stated that injuries as described by him above can be caused by the axe (Article 1) and the said injuries are sufficient to cause death of a person in ordinary course of nature. In the cross-examination, he stated that, those injuries can be caused by an axe. 20. Thus, the testimony of P.W.9 Dr. Pandhari Bawaskar and post mortem notes (Exhibit 33) clarify that the deceased sustained incised wound on the right shoulder and pressed fracture of right side chest and haematoma on right fronto parietal area under scalp 10 x 8 cm. red fresh and depressed fracture skull right fronto parietal area 7