1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.571/2004 Abhiman Maruti Tingre Age-40 yrs.Occ.Labour, R/o Aran ,Tal.Madha, Dist.Sholapur. APPELLANT VS. The State of Maharashtra RESPONDENT Mr.M.A.Choudhari for appellant Mr.P.S.Hingorani,APP for State CORAM: NARESH H.PATIL & MRS.MRIDULA BHATKAR,JJ. DATE- 1st July,2011. ORAL JUDGMENT (Per Mrs.Mridula Bhatkar,J.) . The appellant has filed this appeal against the judgment and order of conviction passed by 4th Additional Sessions Judge, Sholapur in Sessions Case no.223/2003, dated 29/3/2004 by which the appellant was sentenced to suffer life imprisonment and fine. 2 2 The prosecution case is that the appellant had committed murder of his wife Shewanta Abhiman Tingre on 3/5/2003 at 7.30 p.m. at village Aran,Tal.Madha,Dist.Sholapur. Deceased Shewanta was the daughter of Malhari Lohar. She got married to the accused 10 years pri or to the incident. The Appellant stayed with Shewanta for few years, however, the appellant used to beat and abuse her as she could not conceive. He left her. So she started residing with her father at Modnimb. The appellant thereafter got married to one Padmini and had children from her. Approximately three years prior to the incident, the appellant went to the house of Malhari Lohar and told him that he wanted to take his wife Shewanta back as he wanted to live with her again. Deceased Shewanta, therefore, started residing with him in the same village- Modnimb. On 3/5/2003 Malhari noticed that his daughter and son in law were not found in their house at Modnimb during the whole day, therefore, at around 7 to 7.30 p.m. he telephoned at the residence of neighbour of his son in- 3 law at village Aran and enquired whether Abhiman and Shewanta came at Aran. The neighbour informed him that his son in law had assaulted her daughter with hammer and killed her at their residence. Malhari rushed to village Aran. The distance between Aran and Modnimb is 6 to 7 km.. He found his daughter lying at threshold. Her skull was fractured and brain matter was near her head. She was dead. His son in law was in the house. He went to the police station at Modnimb and gave complaint at around 9.15 p.m. on the same day. The offence was registered against the accused at C.R.No.56/2003 under section 302 of the Indian Penal Code. Police drew spot and inquest panchanamas in the night and arrested the accused in the morning on 4/5/2003. The police recorded statements of the witnesses, completed investigation and filed chargesheet against the accused in the Court. The case was tried by the Sessions Court and the accused was convicted for the offence of murder and sentenced to suffer life imprisonment. 3 Learned counsel appearing for the appellant 4 submitted that the case is based on the circumstantial evidence and there is no eye witness. While appreciating the evidence of this case, the history of matrimonial background of the deceased and the accused is required to be considered. The deceased married to the accused, however, they were not on good terms and therefore, the accused got married to one Padmini. It is argued that the deceased had also performed second marriage with one Popat Thorat and was having son from him. Learned counsel submitted that prosecution did not bring any evidence on record to show that the deceased and accused at the time of incident were residing together. Immediately after the incident, P.W.3 who arrived immediately on the spot has stated that the accused was standing near the dead body of the deceased. If the accused would have committed murder, he would not have remained there. The possibility of any third person committing her murder cannot be ruled out. He further submitted that the police arrived on the spot within 10-15 minutes and if 5 appellant was present there and the hammer was lying on the spot, why police delayed the panchanama and arrest of the accused. The accused was arrested on 4/5/2003 . Why the police did not seized the weapon i.e. hammer immediately. Learned counsel alternatively argued that assuming that the accused gave blow on the head of the deceased with the hammer, there is no evidence to show that there was preparation and he really intended to commit murder of his wife. He submitted that quarrel with the deceased led sudden provocation so accused gave blow to the deceased. The accused be given the benefit and he is to be taken out of the clutches of the offence of murder. He also submitted that the case falls in the category of culpable homicide not amounting to murder. 4 Per contra learned A.P.P. argued that there is evidence of father of the deceased, who is the complainant, on the point of motive. There were continuous quarrel between the two and this led the 6 accused to commit murder of his wife. Learned A.P.P. argued that prosecution has tendered the evidence of P.W. 3 Siddheshwar Wagh, who had arrived immediately on the spot, who has stated about the presence of the accused alongwith hammer. The prosecution has relied on extra judicial confession given by the accused to P.W.3 and the complainant,P.W.2, i.e. father of the deceased. Learned A.P.P. pointed out that seized hammer was sent to the chemical analyser on which there was blood of group ‘B’ which was the blood group of the deceased. Similarly the blood stains were found on the clothes of the accused at the time of his arrest and the blood group was detected by the Chemical Analyser as ‘B’. The prosecution has relied on the evidence of P.W.5, Dr.Sarode, who conducted postmortem on the body of the deceased and had found that the death was due to haemorrhagic shock due to skull fracture. Therefore, it is prayed that the judgment and order of the Sessions Court be confirmed. 5 The present case though is based on the circumstantial evidence, the prosecution has tendered a 7 chain of strong and complete circumstances. There is no eye witness to the incident. However, immediately after the incident of murder, P.W.3, Siddharth Waghmare, had arrived at the spot. He was the neighbour of the accused. (He was milking she buffalo just 15 feet away from the spot of offence). He deposed that on the same day at around 12 noon he saw the deceased and the accused together in the house of the accused at Aran when he left for the work. He returned in the evening at 6.00 p.m. and at that time also he saw both husband and wife together in their house. Thereafter at about 7 to 7.30 p.m. he was milking she buffalo just 15 feet away from the spot of the offence. He heard cry. So he rushed to the spot. He found Shewanta was lying there. She was badly injured. Her skull was fractured and brain matter was near her head. He saw the accused was standing near her dead body holding hammer in his hand. He deposed that he asked the accused as to what he had done. The accused told him that there was quarrel between him and his wife and so he killed her. P.W.4, Balbhim Ramchandra Kedar, who was 8 doing tailoring work and was residing near the house of the accused communicated about the murder of Shewanta to her father when her father,P.W.2, telephoned him to know the whereabouts of his daughter. P.W.2, complainant, has stated about making enquiry on phone about his daughter with P.W.4 at 7 to 7.30 p.m. and also about receiving such news from P.W.4. P.W.2 on reaching Aran found his son in law in the house. He questioned him why he had done so. His son in law told him that as his daughter was fighting with him he killed her. He went to the police station and lodged complaint at 9.15 p.m.. F.I.R. was registered immediately. The police arrived at the spot and they drew inquest panchanama, Exh.9 on 3/5/2003 at 22.23 hrs.. They also drew spot panchanama. Exh.9, on 4/5/2003 between 7 to 8 a.m.. During spot panchanama they collected plain soil and blood stained soil from the spot. They found hammer lying on the spot. So they seized it during spot panchanama. The accused was arrested on the next day i.e. on 4/5/2003. Postmortem was conducted by P.W.5,Dr.Sarode, who deposed that he found four head 9 injuries with fracture injuries. The injuries were sufficient to cause death in ordinary circumstances and the injuries can be caused by hard and blunt object. The death was due to haemorrhagic shock due to skull fracture and injury to vital organ like brain causing cardio respiratory arrest which led to death. Thus, all the prosecution witnesses have led very cogent and consistent evidence. Evidence of P.W.2 could not be destroyed in the cross examination. Even though as argued by the learned defence counsel the history of the married life of the deceased and the accused is taken into account, it is not helpful to the defence. This history is brought on record by the prosecution through the father of the deceased. The fact that the deceased and the accused were staying separately after few years of their marriage is stated by the father of the deceased,P.W. 2. However, he has also deposed that around three years prior to the date of the incident the accused had come to the house of P.W.2 and thereafter deceased Shewanta and the accused started residing together in the same village Modnimb. Thus, it is difficult to accept the suggestion of 10 the defence counsel that the deceased in between also got married to Popat Thorat and was not residing with the accused. Moreover, the prosecution has tendered unshattered evidence that on the date of the incident i.e. 3/5/2003 the accused and the deceased were not found in Modnimb by P.W.2, but they were seen together in the house of the accused at Aran by P.W.3 who is the star witness of the prosecution and his evidence is found very natural and creditworthy. We do not find any reason to disbelieve the evidence of any of the witnesses of the prosecution. The submissions of the learned counsel about the conduct of the accused that he did not run away from the place, does not lead to the inference of his innocence. His presence is in fact consistent with his guilt. P.W.2 has stated that the accused was found holding hammer in his hand and as per the evidence of the Medical Officer fracture of skull was caused by hard and blunt object. Besides, there are two extra judicial confessions of the accused to P.W.2 and P.W.3. These extra judicial confessions cannot be doubted. Thus, all these 11 circumstances are incriminating and the learned Sessions Judge has rightly arrived at the conclusion and held the accused guilty. 6 On the point of murder, the submissions of learned defence counsel that the act committed by the accused is not murder but culpable homicide not amounting to murder, are not convincing. Preparation is not a required ingredient to prove the murder. It is sufficient if the prosecution proves that there was an intention to cause such a bodily injury which in ordinary course of nature will cause death of a person. Death of Shewanta was due to fracture to the skull. For the purpose of murder hammer was used which is hard, blunt and heavy object. A blow was given on the vital part of the body i.e. head. Four C.L.Ws. with fracture to parietal and occipital bones were noticed by P.W.5, Medical Officer, as external injuries at the time of postmortem. Thus, as per the evidence of P.W.3 when he arrived at the spot he found head was borken and brain was lying near the head. This 12 shows the blow was very forceful and intention was evident. Such an act cannot be labelled as culpable homicide not amounting to murder, but it is a murder. 7 For all above discussion, we are not inclined to set aside the order and judgment of the Sessions Court. The appeal is dismissed. (MRS.MRIDULA BHATKAR,J.) (NARESH H.PATIL,J.)