1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 578 OF 2008 Eknath s/o Ramu More (Bhil) Age 48 years, Occ Labourer R/o. Umare, Bhill Locality Tq. Erandol, District Jalgaon ...Appellant Versus The State of Maharashtra Copy to be served on Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad ...Respondent ..... Mr. C.V. Thombre, advocate for the appellant (appointed) Mr. N.R. Shaikh, A.P.P. for respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 20.07.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 22.07.2010 JUDGMENT (PER SHINDE, J.) 1 This appeal is filed challenging the judgment and order dated 7.4.2007 passed by the learned Additional Sessions Judge, Jalgaon in 2 Sessions Case No. 148 of 2005. 2 The background facts of the case are as under;- It is the case of the prosecution that the appellant herein i.e. accused Eknath Ramu More (Bhil) started residing at village Umare alongwith his wife and children in Bhil locality since 5 to 6 months prior to the incident in question. The accused-appellant was working as agricultural labourer with P.W.6 Narayan Bhaskar Patil. It is further case of the prosecution that accused Eknath More was addicted to liquor and he frequently used to quarrel with his wife under the influence of liquor. It is alleged that on 22.6.2005, early in the morning before 5.30 a.m., the accused killed his wife viz. Sumanbai by stone in Umare Shivar, near the field of one Sunil Dayaram Patil. When the accused was carrying corpus of his wife in the bullock cart towards Kanashi road, one Sanjay Popat Bhil and Jaysing Budha Nikam have noted the said fact. Thereafter, this incident was informed to the police Patil and accordingly police Patil Shantaram Ramdas Patil alongwith others went to Bhil locality and found there some marks of tampering as well as hair and Kali pot of lady lying. Thereafter, the police Patil alongwith other persons went towards the Kanashi in forest where they saw the corpus of Sumanbai lying in a pit. Police Patil Shantaram 3 thereafter went Kasoda police station and lodged report of the said incident. On the basis of the said report, offence punishable under Sections 302 and 201 of I.P.C. came to be registered against the appellant vide Crime No. 12 of 2005. Thereafter, the police visited the spot, dead body of Sumanbai and other incriminating articles were seized. Spot panchnama as per the situation as well as inquest panchnama of the dead body was drawn. Then the body was sent to post mortem to Rural Hospital, Erandol. Thereafter, clothes on the person of the deceased were seized. Statement of the concerned witnesses came to be recorded. Accused appellant came to be arrested. He made disclosure statement before the police. At his instance, stone was recovered. Blood stained clothes of the accused were seized. Incriminating articles were sent to C.A. report. On completion of investigation, charge sheet was filed by Kasoda police station before the learned J.M.F.C. Erandol. The learned J.M.F.C. committed the case to the Court of Sessions for trial, as the offence is punishable under section 302 of I.P.C. which is exclusively triable by the Court of Sessions. On appreciation of evidence, the learned Additonal Sessions Judge, convicted the appellant for the offences punishable under Sections 302 and 201 of I.P.C. and he was directed to undergo life imprisonment. Hence this appeal. 4 3 Learned counsel appearing for the appellant submitted that the prosecution has utterly failed to establish the motive behind the alleged crime. It is further submitted that though the prosecution has made allegations that there was frequent quarrel between the husband and wife, no evidence to that effect has been brought on record by the prosecution. There is no direct evidence regarding incident and there is delay in lodging the F.I.R. The evidence available on record was not sufficient to establish the chain of circumstances. The accused has been falsely implicated in the case. Learned counsel for the appellant invited our attention to the statement of witnesses recorded on behalf of the prosecution and also other evidence and submitted that the appellant is entitled for acquittal. 4 On the other hand, learned A.P.P. for the State invited our attention to the impugned judgment and order and submitted that if circumstances brought on record coupled with the medical evidence and C.A. Report taken into consideration, the impugned judgment and order does not suffer from any infirmity and therefore, the appeal is devoid of any merit and the same deserves to be dismissed. 5 With the assistance of learned counsel appearing for the parties, we have carefully perused the impugned judgment and order and other record made available for our perusal. At this juncture, it would be relevant to mention the evidence of P.W.6 in whose 5 agricultural field the appellant accused was working at the relevant time. P.W.6 Narayan Bhaskar Patil has stated in his examination in chief before the court that he knows the accused, because he was working with him as agricultural labourer. He was residing in a hut in his field alongwith his wife and children. This witness further deposed that the appellant was addicted to liquor. He used to raise quarrel daily with his wife by consuming liquor. On 21.6.2005, there was weekly market of village Kasoda. P.W. 6 paid Rs.200/- towards labour charges to the appellant-accused. The accused himself, his wife and his small child went to weekly market of village Kasoda. In the evening, the appellant accused returned from the market and made a demand of Rs.30/- from this witness. Accordingly, he paid Rs.30/- to the appellant. At that time, his wife and small child were with him. This witness has further deposed that accused was under the influence of liquor. P.W.6 told him to go to the field, take the food and go to sleep. Thereafter, the accused left the house of this witness. This witness has further stated that on next day morning, he went to his threshing floor out of the village, where his bull and cart were not found. Thereafter he made enquiry here and there about bulls and cart. He returned to his home. At that time one Sanjay Popat Bhil resident of Bhil Vasti, came to him and on his inquiry with him about bull and cart, he told this witness that Eknath Bhil has taken bullock cart wherein dead body of the wife of accused 6 was lying. Thereafter this witness narrated the above said incident to police Patil of village viz. Shantaram Patil. Thereafter the police Patil and this witness went to the field of this witness. On the way they met one Jaysing Bhil he disclosed that accused went towards Kanashi road, by bullock cart, therefore, they proceeded towards Kanashi Road. In the village Kanashi they met with one Raysing Bhil i.e. P.W. 8. He told them that accused Eknath was seeking assistance with him to provide spade and pick-axe so that he could bury the corpus of his wife. He told them that they did not provide spade and pick-axe and drove the accused out of the village. Thereafter, when they proceeded towards wheel marks directions, in forestry they found his bullock cart and nearby it the corpus of the lady was found in a pit. The police vehicle and police Patil were present near the said pit. Thereafter police have prepared panchnama. The evidence of P.W.6 to the extent that the appellant was working with him at the relevant time is not disputed by the appellant. In his statement under Section 313 of Cr.P.C., while replying question No.2 i.e. “It has come in the evidence of P.W.6 Narayan Bhaskar Patil that you were working with him as a agricultural labour and was residing in a hut situated in his field alongwith your wife and children. What you have to say?, The appellant replied that “It is true”. 7 Therefore, it is undisputed position that the appellant was working with P.W.6 Narayan Bhaskar Patil at the relevant time. 6 P.W.3 Sanjay Popat Bhil, in his examination in chief has deposed before the court that he knows accused Eknath that he is from his community. The locality in which this witness and the appellant reside is known as Bhil Vasti. This witness has further deposed that prior to 5 to 6 months of the incident, accused alongwith is family came to reside at Bhil Vasti. He used to work as agricultural labourer with Narayan Bhaskar Patil and accused Eknath and his wife were in habit of consuming liquor. They used to quarrel on consumption of liquor. On one Tuesday, accused alongwith his wife and small child went to weekly market at village Kasoda. On that day, their three children were at home. The accused and his wife did not come back from weekly market. On the next day in the morning, accused Eknath came to Bhil Vasti alongwith bullock cart, wherein his wife was in sleeping position. This witness saw the bullock cart of the accused in which the wife of accused was lying in dead condition. He saw the face of the said lady. Her face as well as throat were having swelling. That time the blood was coming out of her nose and mouth. Thereafter accused put the utensils, which were in his house, in the said bullock cart and then alongwith three children he went towards Kanashi road. This witness has further deposed that accused was in frightened condition. Thereafter this witness went to village Umare 8 and met the police Patil Shantaram Patil and narrated the incident and told that accused alongwith bullock cart went towards Kanashi road. Thereafter this witness came to their Vasti. This witness has further deposed that in his presence the police had prepared inquest panchnama of the dead body of deceased Sumanbai. Exh.14 is the same panchnama, which bears his signature. The evidence of this witness is more or less reiterated by P.W.5. There is no serious challenge in his cross examination to the evidence of this witness. This witness has stated that deceased was last seen together in the company of the accused and also the evidence of this witness further discloses that the accused tried to cause disappearance of the evidence. Therefore, the evidence of P.W.3, P.W.5 and P.W.6 is on two points viz. Last seen together and causing disappearance of the evidence by the accused-appellant. 7 As stated earlier, the appellant accused was working at the relevant time with P.W.6. The evidence of P.W.6 is not shaken in his cross examination. He has also seen the accused in the company of deceased on 21.6.2005 in the evening time. 8 P.W.8 Mr. Shivaram Ukha Thakare was also examined by the prosecution. The said witness is resident at Kanashi, Tq. Erandol, District Jalgaon. In his examination in chief he stated before the court 9 that he knows the accused as well as his wife Sumanbai. He further deposed that accused Eknath has killed is wife Sumanbai and by putting her corpus in the bullock cart came to village Kanashi. The blood was coming out of nose and mouth of the said dead body. There was injury upon the cheek oft he said body. This witness has further deposed that accused Eknath was asking him to give spade and pick- axe to bury the corpus of Sumanbai. They drove him. On his inquiry with accused, he told that he killed his wife. the accused told him that he has consumed liquor, there was quarrel with his wife and therefore, he killed her. In the cross examination, the evidence of this witness has not shaken. 9 The evidence of P.W.9 Dr. Nirajkumar Rajkumar Sinha, who is Medical Officer was also recorded. He deposed before the Court that at the relevant time, he was working as Medical Officer at Rural Hospital, Erandol during the period from 13.7.2004 to 12.7.2005. On 22.6.2005 when he was on duty the corpus of one Sumanbai Eknath More was referred to him for autopsy. On the next day i.e. on 23.6.2005 he conducted the post mortem upon the said dead body in between 10.50 a.m. to 11.30 a.m. During examination he found the following injuries; 1) Abrasion in form of nail marks over the chest 2) C.L.W. over right cheek 10 3) C.L.W. over forehead above nose. On examination he further found some internal injuries i.e. fracture of nasal bone, fracture of maxillary bone and fracture of frontal bone. Thorax lung congested, pericardium congested, large vessels congested, bucal cavity teeth tongue and pharynx 8|8 tongue protrud- 8|8 ing from mouth stomach congested and empty. Large intestine congested. According to this witness, the cause of death was respiratory arrest due to uncontrolled hemorrhage, due to head injury and facial injury with fracture nasal, frontal and maxillary bone. Accordingly, he prepared the post mortem notes, in his handwriting. It bears his signature. He admitted the contents of Exh.35. He has identified that it is his signature. He further deposed that injuries in column No. 19 (ii) of post mortem notes can be possible by blow of stone. He further deposed that the stone used in the incident was shown to him and he stated that the injuries can be caused in case of blows by the said stone. The evidence of this witness is not seriously challenged in the cross examination. 10 The investigating Officer Sham Shinde was examined as P.W. 10. In his examination in chief, he stated that on 22.6.2005, he was working as API of police station Pachora. On that day the police Patil of village Umare viz. Shantaram Ramdas Patil gave a complaint in the said police station. He recorded the complaint at Exh.12. He further 11 deposed that he went to spot and prepared the inquest panchnama of the dead body as well as the spot panchnama. The inquest panchnama is at Exh.14 is the same which bears signature of panchas as well as his signature at Exh.13. The spot panchnama wherein he has shown seizure of articles found at the spot and the said panchnama also bears signature of panchas as well as Investigation Officer. He has stated that the contention of the panchnama are correct. He has further deposed that he seized the clothes of the accused, seizure panchnama is at Exh.15, it bears his signature. He has further deposed that during the police custody, the accused made a disclosure statement and in pursuance to that the accused produced the stone by which he has assaulted his wife as well as clothes upon his person, memorandum statement was prepared. Thumb impression of the accused was taken on the said memorandum statement which is at Exh.40. This witness has also stated about the seizure of stone. The evidence of Investigating Officer is not seriously challenged in the cross examination. 11 The clothes of the accused as well as deceased were sent for C.A. Examination, Article 2 and 3 i.e. Saree wrapped in paper labelled and Blouse (cut) wrapped in paper labelled belongs to deceased were sent for C.A. Examination. Full pant and open shirt wrapped in paper labelled of the accused i.e. articles 5 and 6 were also sent to C.A. Examination. The C.A. Report indicates that blood detected on articles 12 exhibits 2, 3, 5 and 6 i.e. clothes of deceased and accused are stained with blood group of “B”. 12 We have minutely considered the evidence brought on record as well as the arguments advanced by the counsel for the appellant and the learned A.P.P. for the State. It is true that there is no direct evidence in the case on hand, however, the circumstantial evidence brought on record by the prosecution unequivocally indicates that the appellant is author of the crime alleged against him. The deceased was last seen in the company of accused by P.W.3, P.W.5 and P.W.6. There is also important circumstance that in examination of the appellant under Section 313 of Cr.P.C., the appellant has not offered any explanation under which circumstance his wife died. On careful perusal of the statement of accused under Section 313 of Cr.P.C. in his defence he stated that he does not want to lead any evidence in his defence. He has not offered any explanation for the death of his wife. Though, it is contended by the counsel for the appellant that there was no motive behind the incident in question, the prosecution has brought the evidence on record that the appellant/accused used to quarrel frequently with his wife under the influence of liquor. Another circumstance, which is vital in the chain of circumstances is injuries found on the dead body of the deceased. Evidence of P.W.9, Medical Officer, shows that abrasion in the form of nail marks over the chest, CLW over right cheek and CLW over forehead above nose. Though it 13 was tried to be contended before the trial court that due to fall on the stone deceased sustained injuries, however, the same contention is falsified by the injury No.1 i.e. abrasion in form of nail marks over the chest. 13 The further evidence of P.W.8 who is resident of Kanashi, clearly suggest that the appellant accused was carrying dead body of his wife by bullock cart and he requested him to give spade and pick- axe to bury the dead body of his wife. Therefore, taking into consideration the evidence of the prosecution witnesses, coupled with the medical evidence and C.A. report, only conclusion can be drawn that the appellant accused has committed murder of his wife. On careful perusal of statement of accused under section 313 of Cr.P.C. he has not offered any explanation under which circumstance his wife died. 14 Viewed from any angle, we do not find that the impugned judgment and order suffers from any infirmity. The learned Additional Sessions has properly appreciated the evidence on record and came to the definite conclusion and convicted the appellant accused. Therefore, in our opinion, there is no substance in the appeal and the appeal lacks merit. 15 Thus, in the facts and circumstances of this case, in our 14 opinion, the trial court has properly appreciated the evidence brought on record. After appreciation of entire evidence on record and after giving full opportunity to the respective parties, the trial court has convicted and sentenced the appellant-accused. We do not see any infirmity and perversity in the findings recorded by the trial Court. Therefore, this appeal is devoid of any merits and same stands dismissed. 16 We appreciate the able assistance rendered by Advocate Mr. C.V. Thombre, who is appointed as amicus curiae to represent the appellant in the present appeal. We quantify an amount of Rs.3000/- towards his legal fees and expenses for conducting this appeal. *****