1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 4 OF 1999 Pandurang s/o Havgirao Kavthale, Aged Major, Occupation Agriculture, Resident of Nagewadi, Taluka Nilanga, District Latur Appellant V E R S U S The State of Maharashtra Respondent Mr.R.K. Temkar, Advocate holding for Mr. S.S. Manale, Advocate for the appellant Mr. T.S. Lodhe, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 19th November, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned Additional Sessions Judge, Nilanga, in Sessions Case No. 46 of 1998. The appellant was convicted for the offence punishable under Section 304 (II) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 3,000/- with a default clause. The learned Judge of the trial Court also convicted the appellant for the offence punishable under Section 323 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs.300/- with a default clause. The facts of the case can be narrated as under : 2. Appellant Pandurang was married to victim Nilawati for more than 12 years and they had three children. They were staying at village Nagewadi. It is alleged that the appellant was not treating his 2 wife Nilawati properly and was repeatedly assaulting and abusing her. On 16th February, 1998, deceased Nilawati had arranged ceremony on account of completion of fast of 16 consecutive Mondays at her house. She had given message to her brothers who were residing at village Nalegaon, which is at about 4-5 k.m. away from village Nagewadi. In response to her invitation, her brother Basavraj on 16-2-98 came to her house. When Basavraj reached his sister’s house, he found one of the sons of his sister namely Sangmeshwar sitting in the house alone. His sister and brother-in-law were not in the house. Soon thereafter, both his sister and the appellant/his brother-in-law came there. Seeing him, his brother-in-law asked him as to why he had come to his house. He started abusing and assaulting Basavraj, and soon thereafter, appellant picked up a stick and went after his wife deceased Nilawati and started assaulting her causing her bleeding injuries. He dragged her out of the house, and when she fell down, he further attacked her with the stick. Her brother Basavraj tried to rescue her, but the appellant even assaulted him. Basavraj left the spot and went to his house. At the time of the incident, not only Basavraj was present, but other villagers also witnessed the incident. Due to the assault the victim died. Basavraj lodged his complaint to police at about 11.35 p.m. on that day. Pursuant to the complaint, the police started investigation. On the next day morning, they sent the dead-body of deceased Nilawati for post-mortem examination and soon arrested the appellant. They seized his wearing clothes under a panchnama and sent them for chemical analysis. After receipt of Chemical Analyzer’s report, the charge-sheet was filed. 3. At the stage of trial, the prosecution could get support only from few witnesses, namely; complainant Basavraj, Somnath - the minor son of the deceased, the prosecution witness No. 8 Jairaj in whose presence the clothes of the appellant were seized and prosecution 3 witness No. 10 Baban in whose presence the appellant produced a stick which was seized under a panchnama under Section 27 of the Evidence Act and said stick was sent for chemical analysis. In addition to this, the prosecution witness No. 4 Nilkanth supported the prosecution, in whose presence the police recorded scene of offence panchnama. 4. The homicidal death of the deceased was not disputed. The prosecution witness No. 1 Dr. Chandrakant proved this fact through his deposition and the post-mortem notes. Even though it is said above that the incident of assault was witnessed by number of neighbours and villagers, none come forward to support the prosecution case. The prosecution left with only two witnesses, namely; prosecution witness No. 2 and 3, Somnath and Basavraj, the son and brother of deceased, respectively. Out of which, prosecution witness No. 2 Somnath was not believed by the learned Judge of the trial Court, and I think, the learned Judge has not committed any error in that regard. I am thus left with prosecution witness No. 3 Basavraj’s deposition to connect the appellant with the assault and homicidal death of Nilawati. 5. The learned Judge of the trial Court believed prosecution witness No. 3 Basavraj, which resulted into conviction of the appellant. The learned Advocate appearing for the appellant naturally insisted that even the deposition of Basavraj should be disbelieved. In order to appreciate his submission, one must give details of Basavraj’s deposition. As said above, it is Basavraj who lodged the complaint of the incident at about 11.35 p.m. on that day. Basavraj, while narrating the incident to the police, has given details of the assault etc, but when he came before the Court, his deposition was rather sketchy and stilted. He said that on 16th February, 1988, he had gone to the house of his sister Nilawati and found her son Somnath present alone at the residence. He said, Somnath disclosed 4 to him that his mother Nilawati had been to nearby village to fetch material for Puja etc. He said, thereafter, a Priest came to the house of Nilawati for presiding over Puja ceremony. He said, his sister then came home and started cooking food. He said the appellant too came home. At that time, he said, the appellant asked him to come out of the house. He said, he and the appellant then came out of the house. He said, the appellant asked him as to why he had come to his house. He said, soon thereafter, the appellant started beating him. He said, thereafter, the appellant rushed inside the house and started beating his sister with a stick. He said, he tried to intervene, but, he said, the appellant turned to him. He said, he ran away and went to his house at village Nalegaon and informed this fact to his parents. He said, thereafter, his sister died. He said, he lodged his complaint to police in his own handwriting. In the cross-examination, he admitted that due to the beating given to him by the appellant, he had sustained injury on his right shoulder and on right side of his head. He said, he was examined (treated) in the Primary Health Centre at Shirur-Anantpal. He further admitted that when appellant went inside kitchen of the house to assault his sister Nilawati, he left their house. In addition to these admissions, he also stated that his brother Chanbas had earlier made accusation that the appellant had committed theft of certain ornament and a transistor radio belonging to Chanbas. He further admitted that there had been a dispute between deceased Nilawati and the appellant because the of appellant’s accusation that she had committed theft of Rs.5,000/-. He further admitted that due to these disputes, Nilawati and her children had taken refuse at village Nalegaon at their house. But, he said, this dispute was over about four years prior to the incident, because he had paid certain amount to the appellant, and so, the appellant had taken back Nilawati and her children back to his house at village Nagewadi. He also admitted 5 the distance between villages Nagewadi and Nalegaon is about 5-6 k.m. It is apparent that this witness, a sole eye witness now, has not given details of the incident. 6. The post-mortem report shows that the victim had sustained as many as eight external injuries, out of which, three were on head. They were quite large injuries, which are described as contused lacerated wounds having size of 6cm x 1cm x 1cm etc. Due to these injuries, there occurred fracture of skull, internal hemorrhage and laceration of brain beneath one of the head injuries. The external injury which is described as contused lacerated wound on left arm resulted into fracture of lower end of humerus. Besides, there were at least three contusions on hand and shoulder of the deceased. The details of these injuries are given to hight light the fact that the victim was severely beaten up and at least eight blows of stick like weapon were delivered on her person. If such a murderous assault had occurred in presence of the prosecution witness No. 3 Basavraj, and if he had witnessed the same, and if the victim was none else but his own sister, he could not have been so languid while narrating the incident. The learned Advocate appearing for the appellant asserted that in view of this brevity of description, it is possible that this witness had no occasion to witness the incident at all. The learned Advocate appearing for the appellant could not submit that this witness was not at all present at the time of incident, because in the cross- examination, his presence was admitted by the appellant. Indeed, the submission of the appellant’s Advocate in respect of terseness in description of the incident is quite appealing. The question is, whether this lapse on the part of this witness would lead the Court to disbelieve him altogether. I am not inclined to draw such conclusion. The presence of this witness at the time of incident has not been denied and cannot be denied. He had valid reason to visit his sister’s house, though for the first time after 14 6 years of the marriage of his sister with the appellant. There is ample material on record to show that the deceased Nilawati had indeed arranged a Puja ceremony on that day and had invited her brothers and even had engaged services of a Priest, the prosecution witness No. 5 Shambholing. Though the prosecution witness No. 5 has ultimately turned hostile to the prosecution case, he admitted that he had visited the house of the appellant on that day for the purpose of presiding over Puja. He said, he was sent back by the deceased on the ground that her husband had not come and he should come after 1 ½ hour. Even in the scene of offence panchnama, articles required for Puja ceremony were found in the house of the appellant. So, the prosecution witness No. 3 Basavraj had certainly visited the house of the appellant on that day. Basavraj cannot be disbelieved when he said that his sister Nilawati started cooking the meals on one side and on the other the appellant tried to questioning him as to why he had come to his house. The appellant apparently was quite unfriendly to witness Basavraj and was very upset seeing him in his house. This witness admitted in the cross-examination that he had no occasion to visit appellant’s house earlier than the day of the incident. It seems, the presence of Basavraj enraged the appellant. The appellant, it seems, almost asked Basavraj to leave his house asking as to why he had come to his house. Both of them came out of the house, and it seems, there occurred some altercation between them. This led the appellant to assault Basavraj. Thereafter, the appellant charged towards his wife Nilawati with a stick in his hand. Basavraj said that he tried to intervene, but in vain. He left the spot soon after the attack occurred. So, though Basavraj could not give details of the assault, he has certainly proved that the appellant with a stick in his hand had started assaulting deceased Nilawati. 7. The question now is, whether on the basis of this, it is justifiable to connect the appellant with the authorship of the injuries sustained 7 by the victim. As said above, there is nothing on record to show that the appellant delivered blows of stick on various parts especially on the head of the victim. However, there are two circumstances which can directly connect the appellant with the assault on the victim. First is the presence of the victim’s blood on the clothes (pant) of the appellant. On 17th February the appellant was arrested, and soon after his arrest, his shirt and pant were seized and were sealed. They were sent to chemical analysis. The Chemical Analyzer sent a report saying that both the shirt and the pant of the appellant were found stained with human blood, but the pant was found stained with human blood of blood-group ‘O’. The other articles belonging to the victim, such as saree, peticot, blouse were also found extensively stained with human blood of blood-group ‘O’. This leads one to hold that victim Nilawati’s blood-group was ‘O’, and when she bled due to the injuries she sustained, her blood spill over and few drops of her blood even landed on her assailants clothes. 8. The second circumstance against the appellant is seizure of the stick at his instance. Soon after his arrest, the appellant led the police to his house. He showed a secluded place in the house namely storage of grain from where he produced the stick. The stick was seized and was sent for chemical analysis. The Chemical Analyzer reported that even the stick was found stained with human blood. The appellant had an ample opportunity to explain as to how his own clothes were found stained with human blood of blood-group ‘O’, but he failed to do so. The appellant also had an opportunity to explain as to how he was not the author of the injuries sustained by the victim. It is not his case that after Basavraj left his house, he too left without assaulting his wife and that thereafter in his absence the victim had sustained injuries which resulted into her death. 9. The learned Advocate appearing for the appellant also attacked the veracity of the prosecution case on the ground that there is 8 inordinate delay in lodging of the complaint. He indicated that if the incident took place in the afternoon and if Basavraj had gone to his village Nalegaon immediately after the incident, he should have reached the police station soon later in the afternoon. He asserted that in such situation, Basavraj should have filed the complaint at the most early in the evening and not at 11.35 p.m. He asserted that having regard to the sketchy account, Basavraj gave in respect of the incident, Basavraj and members of his family had an ample opportunity till 11.35 p.m. to collect hearsay information regarding the incident and to lodge a false complaint against the appellant. However, the appellant has not taken such defence at all. There is nothing on record even in the cross-examination to suggest that after the incident, any family members of Basavraj or Basavraj himself had visited the appellant’s house and then had gone to the police station. It is neither the case of the appellant that after the incident that took place in the afternoon a report was lodged with the police earlier by any resident of village Nagewadi. It is a fact that until 11.30 p.m. or so, the police were not aware of the incident. Since the incident took place late in the afternoon at broad day light, the knowledge of the same could have had to either the eye witnesses or to the neigbours. Had the appellant not been the perpetrator, he would have gotten its knowledge soon after its occurrence. In that eventuality, he or any other villager of village Nagewadi could have reported the incident to the police. But none went to the police. I think, in view of this, the prosecution case does not suffer any infirmity due to the delay in lodging of the complaint. 10. The learned Judge of the trial Court thought it fit not to convict the appellant under Section 302 of the Indian Penal Code, but held that this was a case in which the appellant could be convicted only under Part II of Section 304 of the Indian Penal Code. Since the State has not challenged this part of the Judgment, I am not inclined 9 to discuss this aspect in this Judgment. 11. The learned Advocate appearing for the appellant then submitted that if the Court is not inclined to allow the appeal, the sentence awarded to the appellant should be reduced. He said, the incident took place long ago in 1998. The appellant is on bail for last more than ten years. The appellant has children and he is the only bread earner of the family. He said, rigorous imprisonment of ten years for the offence punishable under Section 304 (II) of the Indian Penal Code is rather unusual, and he urged that the duration of the sentence should be reduced appropriately. Having regard to these submissions, I am inclined to reduce the duration of the sentence. ORDER (a) The appeal is partly allowed. (b) The conviction of the appellant under Section 304 (II) of the Indian Penal Code is not disturbed, but he is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-, in default he shall suffer further rigorous imprisonment for one year. (c) Rest of the impugned Judgment in respect of conviction of the appellant under Section 323 of the Indian Penal Code is not disturbed. (d) Issue arrest warrant against the appellant. ( A.V. NIRGUDE, J. ) SRM/criapl/4/99/191110/ok