1 Apeal 1190/07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPEAL NO. 1190 OF 2007 Sahadeo Dattu Esapure .. Appellant Vs. The State of Maharashtra .. Respondent Ms. A. N. Pathan for the Appellant. Mrs. M. M. Deshmukh, APP for the Respondent State. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Judgment : 2nd May, 2011. Date of pronouncing the Judgment : 6th May, 2011. JUDGMENT 1. The Appellant has been charged and convicted of offences of murder of his wife Shalan and voluntarily causing hurt to his daughter Rajashri by means of a sharp weapon being a kitchen knife punishable under Sections 302, 323 & 324 of the Indian Penal Code. Upon the evidence led by the prosecution, the Appellant has been convicted of the offences punishable under Sections 304 (II) and 324 of the Indian Penal Code only and sentenced to suffer R.I. 10 years and pay fine of Rs.10,000/- and in default to suffer R.I. for six months. The Appellant has challenged the conviction and sentence. 2. The case of the prosecution is that the Appellant and his wife had certain agricultural land standing in the joint names. These are shown in the 7/12 extracts produced by the prosecution. The Appellant 2 Apeal 1190/07 suffered from certain kidney problem and low eye vision. He wanted the land to be sold. His wife resisted the sale. The relation between the husband and wife were strained. The Appellant used to consume liquor, abuse his wife and beat her. His wife had separated and gone to live along with their children to her mother’s house. The Appellant lived alone with his mother. Both lived in the same neighbourhood. The Appellant used to often visit the house where his wife lived and abuse her and violate her person. It is the prosecution case that on the date of incident i.e. on 30th September, 2005 the Appellant went to the house where his wife lived. Her son was present. The Appellant abused his wife and beat her. The son ran to the neighbouring house where his sister was and called her because he saw her mother being beaten. They both ran towards their house. Their father had brought the mother out of the house and stabbed her above her right shoulder and on the chest. The daughter rushed to save her mother upon which she was also inflicted a blow with a knife on her right shoulder, arm and nape. The mother fell down and died on the spot. 3. The brother and the sister have led evidence. The sister is the injured witness examined as PW 4. Her brother is the eye witness examined as PW 6. The post mortem of the mother was done. The doctor who prepared the post mortem report and has proved the report is examined as PW 3. The Appellant came to be arrested and his blood stained clothes came to be recovered. At the instance of the Appellant the knife also came to be recovered from his person. The recovery panchnama is proved by panch PW 2. The clothes of the Appellant have been sent for chemical analysis. The Chemical Analyser’s 3 Apeal 1190/07 report has shown blood stains on all the articles. The Appellant has not been able to explain the blood stained clothes and the knife recovered from him. 4. This is the ambit of the evidence of the prosecution. The case of the Appellant is of denial. This evidence shall have to be appreciated. 5. The eye witness account as well as the account of the injured witness is the evidence of two children of the Appellant himself. They have deposed against their father. They have deposed about the homicide of their mother. The fact of the owning of the agricultural land and the strained relationship leading to separation of the spouses is admitted. The fact that the Appellant lived in the neighbourhood is also admitted. He has been arrested immediately upon the incident from the neighbourhood itself. In such a scenario the evidence of the daughter PW 4 is that she was at her sister’s house when her brother came running and called her because of the father’s act in the house where his mother lived with him. The brother told her that he had come their and had started beating and abusing and called her. They both ran towards their house. They saw their mother in front of the house being stabbed above her right shoulder and above the chest. She deposed that the stab was inflicted by the knife. She rushed to save her mother. Her father pushed her and gave a blow on her right shoulder, arm and nape with the same knife. She rescued herself and started shouting for help. She further deposed that because her father used to abuse the neighbours also, none came to rescue them or to separate them. The mother fell down and died instantly. She sat down and wept. 4 Apeal 1190/07 This happened between 7.45 to 8 p.m. The police came at about 9 p.m. and inquired with her and took her mother as well as herself to the hospital. She gave her statement to the police which was treated as FIR as the first full account of the incident. 6. Her brother who is examined as PW 6 has deposed about the family relationship as well as the property. He has deposed about the incident that all of a sudden at 7.30 p.m. on that day when he, along with his mother, was at home, his father came and started quarreling and beating the mother. He went to the drawing hall (cSBdhph [kksyh). He dragged her outside. Suddenly he took out the knife and stabbed his mother in the chest. His sister tried to separate him. She was also assaulted with the knife on her right shoulder, arm and nape. The father abused them and absconded and his mother died on the spot. His statement was recorded. 7. The evidence of the sister and the brother is similar in material particulars. The sister as an injured witness is not expected not to deliver the truth about who assaulted her. The fact that the mother died on the spot is not denied. The children would not needlessly make out their father as having slain their mother. The fact that the brother was in the house and went out is corroborated by the fact that the sister was in the other sister’s house and was called. Both have not deposed about what happened in that short span of time when the brother and the sister were away after the initial abuses and quarrel since they both ran to their house. They witnessed what happened at the time they 5 Apeal 1190/07 reached. They were not far away. It did not take long. They witnessed the entire material part of the incident. They have both deposed about the stabbing act by the Appellant. They have deposed about the same place where the mother as well as the daughter were stabbed and assaulted. The fact that they suddenly ran is itself corroborated by the fact that this was usual state of affairs. The fact that neighbours also did not come to help shows the usual conduct of the Appellant. Further the evidence shows that the Appellant came by himself and was armed with knife which he used to inflict blows upon his wife and since the daughter intervened, upon the daughter also. 8. Both of them had stood their ground with regard to the actual incident. The cross-examination with regard to the immovable property is wholly immaterial except to show the justification for the offence. Similarly the treatment taken by the father is for the same purpose but becomes immaterial to consider the offence committed by the Appellant. The cross- examination of the daughter shows that she intervened in the scuffle with her father outside the house. It also shows that her mother was lying motionless and blood was oozing from her body. The case put to her is denied. 9. It is argued on behalf of the Appellant by Ms. Pathan that the daughter failed to identify the weapon. Her cross-examination shows that the knife produced by the prosecution is in daily use from their kitchen. That has not been the case of the prosecution. It may be mentioned that in an incident of that kind it is impossible for the witness to intently see the weapon. 6 Apeal 1190/07 Only the fact that the knife was used is enough to show the presence of the witness at the incident as also the injury suffered. 10. The cross-examination of the brother is much the same. He has deposed that his mother was cooking when his father came home. He left the house after his father shouted. He was frightened. He has refuted the case that therefore he did not return and waited outside and went away from the house. He has also refuted the suggestion that hearing of his father’s abuses and “roaring”, neighbours gathered and there was rush of people. A Suggestion has put to him that he was not at his house but he had gone to the house of his elder sister with his sister Rajashri. In his evidence he has not deposed that he ran to his other sister’s house to call his sister Rajashri. He has deposed that he went to (cSBdhph pkG). His other sister lived close by. That is how both the brother and sister ran home immediately together. He has also refuted the case that he saw his mother lying unconscious with bleeding injuries when he returned. 11. The evidence of these two witnesses has to be seen alongside the post mortem of their mother. The post mortem report has been proved by the doctor PW 3 and marked Exhibit 23 in evidence. It shows death due to stab wound involving major blood vessels of the right side of neck. The injuries in clause 17 show penetrating wound over supraclavicular region. The direction of the wounding is downward. The effect of the wound is seen to be severing the great blood vessels i.e. Right carotid, jagular vein along with corresponding muscle mass of 7 Apeal 1190/07 strap muscles of neck. The age of the injury is shown to be immediate. The weapon is shown to be sharp object. The injuries shown are anti mortem. 12. Several articles have been collected including the clothes of the Appellant and the weapon used by him as also the clothes of the victim and the injured witness. All the articles show blood though grouping is inconclusive. This includes Mangalsutra of the victim. The extent of the blood shown on all the articles further corroborates the stab wound inflicted by the Appellant vertically downward above the chest and neck of his wife. It is further consistent with the oral evidence as also the post mortem report. 13. It is argued by Ms. Pathan on behalf of the Appellant that there is no evidence of independent witnesses for the crime which took place outside the house. This is because the Appellant was a persistent abuser. This in fact supports the oral evidence of the daughter that because he used to abuse his neighbours also nobody came even to help them. This is further supported by the fact that the cross-examination of the daughter itself shows that whilst she sat and wept, her mother was lying motionless and blood was oozing from her body. The fact that none came to help or intervene is also reflected in the fact that the police came after about an hour whilst the children were left helpless. Consequently their statement could not be recorded and their evidence could not be led. This is in fact a very strong circumstance against the Appellant to show his general disposition as also his intention to commit the offence. 8 Apeal 1190/07 14. It is argued by the Ld. Special Public Prosecutor that in the face of such evidence, the Appellant who was immediately arrested has not explained the recovery of the blood stained clothes and the knife. These have been recovered under the panchnama proved by the PW 2, an independent panch. His cross-examination has shown that he was residing near the spot of the incident. He has deposed that the victim was related to him. However he being a person from the locality was eligible to be a panch. 15. A reading of the entire evidence unmistakably shows that the Appellant committed the offence with which he was charged. The Appellant indeed murdered his wife. His wife succumbed to the injuries and immediately died on the spot. The post mortem report made by the doctor shows the injuries which are sufficient to cause death. The fact that the Appellant came armed with knife which he used to inflict fatal blows upon his wife shows that he had intention to commit the offence of murder. However since there was a scuffle, the Ld. Judge has in fact convicted the Appellant not for murder under Section 302 of the Indian Penal Code, but for culpable homicide not amounting to murder under Section 304 (II) of the Indian Penal Code. 16. Hence the sentence of 10 years awarded to the Appellant is not only fit and proper but in fact leniency shown to him. The offence committed upon PW 4, his daughter, is indeed only voluntarily causing hurt in the scuffle and the Appellant has been charged and convicted of that. 9 Apeal 1190/07 17. The Ld. Judge has correctly considered the oral evidence supported and corroborated by the recovery of the weapon as also the medical evidence and the C.A. Report. The Judgment cannot be faulted. 18. The conviction and sentence are upheld. The Appeal is dismissed. (ROSHAN DALVI, J.)