1 Cri.Appeal No.303 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 303 OF 2010 Balaji s/o Sheshrao Mhaske, Age 38 years, Occupation : Nil, R/o Prafulnagar, Tq. Bhokar, District Nanded ..APPELLANT (Ori. Accused) VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellant; Mr S.D. Kaldate, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 20th July, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 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.2,000/-, in default of which to undergo further R.I. for six months, by the Additional Sessions Judge-2, 2 Cri.Appeal No.303 of 2010 Nanded, by judgment dated 21.4.2010, in Sessions Case No.66 of 2009, by this appeal questions the correctness of his conviction and sentence. 2. P.W.11 Sanjivan Mirkale, who was attached to the police station, Bhokar as a Police Sub Inspector, was entrusted with the investigation of Crime No.40 of 2009 on 11.3.2009. The aforesaid crime had been registered on the basis of the report of P. W.1 Sushilabai at Exh.17. On being entrusted with the investigation, P.W.11 P.S.I. Mirkale, immediately proceeded to the scene of the offence along with the staff and noticed the dead body of a woman lying in a pool of blood. The dead body was lying inside the house and the name of the house was "Lumbini Niwas". Inquest panchnama came to be drawn in the presence of P.W.4 Chandrakant and another panch. The inquest panchnama is at Exh.24. The dead body was referred to the Rural Hospital, Bhokar for conducting the post mortem examination. Thereafter the scene of the offence panchnama came to be drawn in the presence of panch witnesses, namely P.W.3 Dilip and another panch at Exh.22. The scene of the offence panchnama depicts that the scene of the offence was the residential house called "Lumbini Niwas", which was two storeyed house of R.C.C. construction. The dead body was lying on the first floor. There was a collapsible gate at the entrance of the first floor. Immediately upon entering the house there was a room on the left side and beyond that was the hall/sitting room. The door from the hall led to the bed room and beyond the bed-room there was bathroom and then the kitchen. 3 Cri.Appeal No.303 of 2010 Opposite the bed room on the right hand side there was open space for washing clothes, etc. To the open space there was a window which opened in the hall. To the right side of the kitchen there was a door which was latched from inside as well as from outside. In the bed-room broken pieces of bangles and a piece of baniyan which was stained with blood was found. There were blood stains on the floor by the side of the bed and a blood stained imprint of the hand was noticed on the inner side of the door. Large blood stains were noticed on the floor in front of the latrine. Blood stains were also found on the wall opposite the bed-room and also on the wall of the kitchen. Some blood stains were noticed on the walls of the bath-room. The mortar which was stained with blood was also found in the bath-room. The dead body was lying in front of the bath-room and latrine. A pestle was also noticed lying near the door by the side of the kitchen, which door has been closed from inside and outside. A piece of wood which had splintered into two was also found there. Broken pieces of bangles were also lying in front of the bathroom. The aforesaid articles came to be seized under the scene of the offence panchnama at Exh.22. Thereafter statements of witnesses came to be recorded. 3. Dead body of deceased Lata, wife of the appellant, was referred for post mortem examination and post mortem had been conducted by P.W.6 Dr. Gunwant Pawar. He noticed the following external injuries on the dead body of Lata :- 4 Cri.Appeal No.303 of 2010 1) Contused lacerated wound, right frontal region, 3 x 1 x 1 cm. triangular in shape; 2) Contused lacerated wound left parietal region, 4 x 1 x 1 cm. oblique; 3) Contused lacerated wound left parietal extending upto occipital bone right side, 5 x 2 x 2 cm. oblique. All above injuries were fresh and caused by hard and blunt object, within six hours; 4) Contused abrasion, 3 x 1/2 cm. below thyroid cartilage. He opined that the injury was fresh and caused due to hard and blunt object and all the injuries were ante mortem. Upon internal examination he noticed following injuries:- 1) Subdural haematoma was present at right temporal occipital region; 2) Trachea is lacerated posteriorly below thyroid cartilage; 3) Bleeding from both the ears present. He, therefore, opined that cause of death was due to terminal cardio respiratory arrest, caused due to asphyxia due to strangulation with head injury. The post mortem report is at Exh.31. He has further opined that the external injuries could be caused by the mortar while external injury no.4 could be caused due to strangulation by means of an electric wire. 5 Cri.Appeal No.303 of 2010 He has further opined that the injuries sustained by deceased Lata were sufficient in ordinary course of nature to cause death. The clothes of deceased Lata came to be seized vide seizure memo at Exh.19. On the same day the accused came to be arrested in the presence of panchas under an arrest panchnama at Exh.42. At the time of the arrest the clothes on the person of the accused came to be seized in the presence of panchas vide seizure memo at Exh.26. The blood sample of the accused came to be drawn under a requisition at Exh.44. On 12.3.2009 statements of seven witnesses came to be recorded and thereafter on 13.3.2009 statement of one accused was recorded. Photographs of the dead body had been obtained and statement of the Photographer came to be recorded. On 17.3.2009 the seized property was referred to the Chemical Analyser, Aurangabad along with P.W.10 Ramesh Nikhare, a Police Constable, under requisitions at Exhs.39 and 40. Further to the completion of investigation a charge-sheet against the accused came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the appellant for offence punishable under section 498-A and 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 5. Prosecution in support of its case examined eleven witnesses while the accused in his defence has examined D.W.1 Bhagirthibai. 6 Cri.Appeal No.303 of 2010 6. In order to effectively deal with the submissions advanced before us by Smt. S.S. Jadhav, learned Counsel for the appellant and Shri S.D. Kaldate, learned Asstt. Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. 7. The edifice of the prosecution evidence, against the accused, consists of the evidence of P.W.1 Sushilabai. P.W.1 Sushilabai, mother of deceased Lata, states that Lata had been married to the appellant about 14 years prior to the incident. After her marriage Lata started residing with the appellant at Bhokar. The appellant was then working as a Teacher. During the subsistence of marriage, Lata gave birth to two sons. The name of the eldest son is Sumedh while the name of second son is Sandesh. After the birth of her sons, the appellant started doubting the character of Lata and, therefore, used to assault Lata. P.W. 1 Sushilabai states that after the illtreatment was narrated to her by Lata, father of Lata had requested the appellant with folded hands to treat Lata well. The appellant, however, continued his illtreatment. About six days prior to the incident, Sushilabai states that she had received a telephone call from Lata wherein Lata had complained to her that the accused had assaulted her. She had accordingly sent her son P.W.5 Vijay to the house of Lata at Bhokar. P.W.5 Vijay and his wife Jayashri brought Lata to the house of Sushilabai. After Lata was residing at the house of P.W.1 Sushilabai, the appellant telephoned Lata and called her 7 Cri.Appeal No.303 of 2010 to Bhokar. The appellant stated that the examination of the two children was approaching and, therefore, Lata should return home. Sushilabai states that accordingly she, P.W.5 Vijay, deceased Lata and her two sons Sumedh and Sandesh went to Bhokar. On reaching the house of the appellant they noticed that the appellant was asleep. Lata had brought a tiffin along with her and thereafter all of them had their food. The appellant and Lata retired to bed room while Sushilabai, her grand-sons and aunt of the appellant D.W.1 Bhagirthibai were sleeping in the hall/sitting room. Sushilabai states that she woke up at about 3.30 a.m. in order to answer the call of nature. In order to reach the latrine she had to pass through the bed-room of the appellant and deceased and noticed that the door of the bed-room was closed. She, therefore, called her daughter and had heard the cry of Lata as "mother save me". Sushilabai, therefore, requested the appellant to open the door. Thereafter she heard the noise of some heavy object being hit against another object. She, therefore, implored the accused to open the door which had been latched from inside. She states that her grand-children i.e. sons of the appellant and deceased had also asked the accused to open the door. Sandesh, son of the appellant, told the accused that he had promised on the telephone that he would not assault Lata and despite this promise why he was assaulting Lata. Sandesh also implored the accused to open the door. The appellant without opening the door replied that some person was beating Lata and that Sandesh should wait. Thereafter cry of Lata stopped and after about half an hour the accused opened the door 8 Cri.Appeal No.303 of 2010 and Sushilabai noticed blood stains on his face. The appellant thereafter went away. Sushilabai entered the bed-room and noticed Lata lying in a pool of blood with a wire tied around her neck and a wooden staff lying besides her. She also noticed a mortar lying near the body of Lata. Sushilabai, therefore, cried for help and went to police station, Bhokar and lodged her report at Exh.17. 8. In cross-examination she has admitted that P.W.5 Vijay resides at Hingoli while she resides at Pathri, District Parbhani. She has admitted that the distance between Hingoli and Pathri is about 60 to 70 Kms. She has also admitted that P.W.5 Vijay resides at Hingoli along with his wife and children. She has further admitted that children of Vijay had also accompanied P.W.5 Vijay and P.W.8 Jayashri when they had gone to fetch Lata from Bhokar. She has denied that while coming to Pathri, Jayashri had stayed at Bhokar. She was confronted with her statement at portion marked "A" wherein she had stated that Vijay returned back to Hingoli while Lata returned to Pathri along with Jayashri and children of Jayashri. She has admitted that Lata had been taken to a Hospital for medical treatment. She has admitted that she is in possession of the medical papers relating to the treatment. She has admitted that the appellant was continuously calling Lata on telephone for return to Bhokar. She has admitted that Lata had stated to her that the appellant had told her on telephone that he loves Lata and he cannot live without her. She has also agreed that because of the entreaties of the appellant 9 Cri.Appeal No.303 of 2010 Lata had agreed to return home. She has stated that Lata and D.W.1 Bhagirthibai had also taken their food which Lata had brought in the tiffin. She has also admitted that they had their food at about 10.00 p.m. She has admitted that they had gone to sleep after an hour of taking their dinner. She has admitted that daughter of sister of the appellant by name Pratibha was also residing at Bhokar along with the appellant, while the nephew of the appellant Sachin was residing some times. She has admitted "it is true that when the bed-room was opened by the accused, nobody from outside had come in the house". She has also admitted that though she tried for help, none of the neighbours had come there. She has denied the suggestion that as it was dark none of the neighbours had come to her rescue. She has denied to have stated portion marked "B" in her statement. She has admitted that after the accused opened the door from inside she had noticed Lata lying in a pool of blood after about five minutes. She has further admitted that upon seeing Lata she had rushed out of the house and had gone to the police station. She has admitted that it might have taken her 10 to 15 minutes to reach the police station and thereafter she had lodged her report. She has admitted that she returned back to the house along with the police in a police vehicle. She has denied the suggestion that they had come on the next day of the incident and had noticed the dead body of Lata in a pool of blood. 10 Cri.Appeal No.303 of 2010 9. Upon perusal of her evidence, we find that implicit reliance can be placed on the testimony of P.W.1 Sushilabai. Though contradictions "A" and "B" have been put to her, according to us the contradictions are on extremely minor aspect of the prosecution case and would not in any manner affect her credibility. From her evidence it emerges that the appellant and Lata retired to sleep to their bed room the door of which was latched from inside. She has stated that she was awakened in the morning and thereafter had heard the cries of Lata. She has also stated that she had heard the noise of some object being banged and thereafter the appellant had opened the door from inside with blood splattered face. She has stated that she had immediately noticed the dead body of deceased Lata. The evidence of P.W.1 Sushilabai stands amply corroborated by the recitals in her complaint at Exh.17. 10. P.W.2 Bhimrao, a panch to the seizure of the clothes; P.W.3 Deelip, a panch to the spot panchnama; P.W.4 Chandrakant, a panch to the inquest panchnama did not support the prosecution and were declared hostile. 11. Prosecution has examined P.W.5 Vijay, who states that the appellant was doubting the character of Lata and on account of that used to harass and illtreat her. He states that his father had requested the appellant to treat Lata well and this request was made with folded hands. He states that on 2.3.2009 Lata had called him on the telephone and had 11 Cri.Appeal No.303 of 2010 complained to him that she was assaulted by her husband and accordingly she called P.W.5 Vijay to her house. He states that he, his wife, P.W.8 Jayashri and their two children went to Bhokar to the house of Lata. He reached house of Lata at about 4.30 to 5.00 p.m. and Lata had narrated to him that the appellant was suspecting her character and on account of that the illtreatment had increased. He, therefore, decided to take Lata to Pathri and accordingly left Bhokar for Pathri on the next day i.e. on 3.3.2009. He states that the appellant had obstructed him from taking Lata and had also promised that he would not illtreat Lata. He, therefore, asked his wife Jayashri to stay back at Bhokar along with Lata and her children. He returned to Hingoli. Jayashri had telephoned P.W.5 Vijay and had informed him that the appellant had taken Lata in a room and had assaulted her severely and, therefore, P.W.8 Jayashri requested P.W.5 Vijay to come immediately. He accordingly started for Bhokar and reached Bhokar at about 4.00 to 4.30 p.m. On reaching the house of the appellant he did not notice Lata and, therefore, asked Pratibha, niece of the appellant as to where Lata and P.W.8 Jayashri had gone. He states that Pratibha informed him that they had gone to the hospital. He, therefore, waited for Lata and P.W.8 Jayashri. Upon their return he noticed that Lata had sustained injuries. Meanwhile, one Kisan; brother of the appellant also came to the house of the appellant and he told him as to how the appellant was treating Lata. He states that Kisan also made wild allegations against the character of Lata. P.W.5 Vijay, therefore, said that he would take his sister deceased Lata along with 12 Cri.Appeal No.303 of 2010 him. The appellant had opposed P.W.5 Vijay from taking deceased Lata along with him. P.W.5 Vijay states that despite the opposition they left for Pathri and accordingly reached Pathri on 4.3.2009 in the morning. He further states that on 6.3.2009 the appellant had come to Pathri and had touched the feet of P.W.1 Sushilabai and promised that he would treat Lata properly henceforth. The appellant, however, left on the next day without informing any one. The appellant thereafter telephoned Lata and requested Lata to return home. The appellant had said that in case Lata does not return he would kill himself. Accordingly, Lata requested P.W.5 Vijay to reach her to Bhokar and accordingly P.W.5 Vijay, P.W.1 Sushilabai, deceased Lata and her two sons returned to Bhokar on 10.3.2009 at about 4.30 p.m. The appellant, D.W.1 Bhagirthibai and his nephew were present in the house. Lata prepared the tea for all of them and P.W.5 requested the appellant to treat Lata properly and thereafter he returned to Pathri while P.W.1 Sushilabai stayed back. He states that at about 3.30 a.m. he received a telephone call from P.W.1 Sushilabai and Sushilabai had narrated to him that the appellant was assaulting Lata severely. He states that he had also heard the shout of beating. He states that his nephew i.e. son of Lata, also requested him to save Lata. He states that he again started for Bhokar along with his brother and on reaching Bhokar learnt that Lata had died. In cross-examination he has admitted that Lata was aged about 17 to 18 years at the time of marriage. He could not state as to when the accused was employed. He has admitted that D.W.1 Bhagirthibai is the real sister of the mother of the 13 Cri.Appeal No.303 of 2010 appellant. He has also admitted that nephew of the appellant Sachin was also residing with the appellant. He has admitted not to have stated in his previous statement that on 24.7.2008 the appellant had expressed his doubts regarding character of Lata in front of father of P.W.5 Vijay. He has admitted not to have stated that on account of the plight of Lata his father was required to be taken to the hospital. Omission has been duly proved that he had not stated in his previous statement that he had reached the house of the appellant at Bhokar at about 4.00 to 5.00 p.m. on 2.3.2009. The omission is only in respect of the timing. The exact words used by the accused while obstructing P.W.5 Vijay while taking Lata with him on 3.3.2009 have been proved as an omission. He has admitted not to have stated that on reaching the house of the appellant at Bhokar on 3.3.2009 Pratibha had informed him that Lata had been taken to the Hospital for treatment. Omission has been duly proved that he had not stated that Kisan, brother of the appellant had made wild allegations regarding the character of Lata. He has admitted that when he had gone to the house of the appellant on 11.3.2009 the appellant was not present in the house. He has admitted that he does not know whether the appellant had been arrested by the police. He has admitted that he had not met the appellant on that day. 12. Smt. Jadhav, learned Counsel for the appellant has urged before us that there is variance in the testimony of P.W.1 Sushilabai and P.W.5 Vijay in respect of the appellant coming to the house of Sushilabai and 14 Cri.Appeal No.303 of 2010 touching her feet and promising that he would not illtreat Lata. According to us, the aforesaid variance in the testimony of P.W.1 Sushilabai and P.W.5 Vijay is an extremely minor variation. The aforesaid variation does not materially affect the core of the testimony of either P.W.1 Sushilabai or P.W.5 Vijay. P.W.5 Vijay substantially corroborates the testimony of P.W.1 Sushilabai in respect of bringing Lata to the house of Sushilabai on account of complaint made by Lata. The aforesaid variation can hardly be called as variation or inconsistency in the testimony of these two witnesses. In any event, on the basis of the aforesaid inconsistency, the evidence of P.W.5 Vijay cannot be rejected. At the close of the cross- examination, P.W.5 has emerged as a truthful witness on whom implicit reliance can be placed. 13. Prosecution has examined P.W.8 Jayashri, who deposes in the same manner as P.W.5 Vijay. Omission has been proved in the cross- examination that she had not stated that Lata had complained to her that the appellant was doubting her character and, therefore, was illtreating to her. Omission has been proved that in her presence the appellant had pushed Lata against the wall, as a result of which Lata had sustained injury to her nose. She has also admitted that Bhagirthibai was present when Lata died. 14. Prosecution has examined P.W.6 Dr. Gunwant Pawar, who has conducted the autopsy. In cross-examination he has admitted as correct 15 Cri.Appeal No.303 of 2010 that there was internal bleeding in the skull and deceased Lata had approximately bled about half a liter of blood. He has admitted that the possibility of asphyxial death due to smothering cannot be ruled out. 15. Prosecution has examined P.W.7 Sumedh, son of the appellant and deceased Lata. Sumedh states that his parents used to quarrel with each other and some times the appellant used to beat deceased Lata. According to him, the appellant used to take Lata to a room and bolt the door from inside and used to assault her. Sumedh states that he used to hear the shouts of his mother and the appellant used to question Lata as to why she was talking with persons and whether she was sleeping with any particular person. He states that on 3.3.2009 after he returned from school he noticed that his mother deceased Lata had sustained an injury and there was bleeding through the nose. He states that he had also found injuries on the left hand of Lata. He states that he was frightened but one Amol pacified him. On 6.3.2009, he states that he along with his father had gone to Pathri and thereafter his father had returned back to Bhokar. He states that on 10.3.2009 his father had called deceased Lata on the phone and his maternal uncle had switched on the speaker phone on the mobile and they heard his father saying to deceased Lata that he was missing her, he loves her and that she should return to Bhokar. He states that thereafter P.W.1 Sushilabai, P.W.5 Vijay, P.W.8 Jayashri, deceased Lata and his brother returned back to Bhokar. He states that the appellant talked to deceased Lata for some time and 16 Cri.Appeal No.303 of 2010 thereafter his mother went inside the kitchen for preparing the food. P.W. 5 Vijay returned back to Pathri. D.W.1 Bhagirthibai and Arvind were also present in the house at Bhokar. The appellant thereafter bought sprayers for spraying colours because of Holi. He insisted that the children play Holi in the house. He states that thereafter they had their dinner