1 APEAL.705-04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.705 OF 2004 Bhanudas Baba Pandhare age 27 years, Occ : Agriculturist, R/o Shirasgaon Kata, Tal. Shirur Dist. Pune. At present R/o Bori, Tal. Shrigonda, Dist. Ahmednagar, At present Yerwada Central jail, Pune. .. APPELLANT (Original Accused) Versus. The State of Maharashtra (through Shirur Police Station, Shirur, District - Pune) .. RESPONDENT. .... Mr Uday Warunjikar, Advocate for the Appellant. Mrs A. S. Pai, Additional Public Prosecutor for the State. .... CORAM : D. D. SINHA AND A .R. JOSHI, JJ. DATE OF RESERVING THE ORDER : 4TH AUGUST, 2011. DATE OF PRONOUNCING THE ORDER : 06th SEPTEMBER, 2011 PPD 2 APEAL.705-04 ORAL JUDGMENT (PER A. R. JOSHI, J.) : 1. The Appellant-accused preferred the present appeal against the judgment and order of conviction passed on 6th April, 2004 by 8th Additional Sessions Judge, Pune. Said impugned judgment and order was passed in Sessions Case No.215 of 2003 wherein the appellant accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for three months. 2. Since the date of arrest i.e. 19th June, 2002, till the passing of the impugned judgment and order and thereafter till today the appellant-accused is throughout in custody. 3. The case of the prosecution, in nut-shell, is as under :- The appellant was staying with his parents during the relevant time of the incident, which happened in the year 2002. The appellant got married, however, his marital life was disturbed and there was some dispute between the couple. The wife of the appellant was frequently visiting her parents and as such there was marital discord between the couple. Said marriage was fixed by the mother of the 3 APEAL.705-04 appellant. Because of the conduct of the wife, the appellant was cursing his mother on various occasions and there used to be quarrel between the appellant and his mother (deceased). Similar such quarrel ensued between them in the afternoon and evening on 18.6.2002 at the house of the appellant. 4. In the evening of 18.6.2002 the appellant and his father returned from Patas to their house. They had been to a medical practitioner for taking medical treatment for the appellant. They returned to the house in the evening at about 6:00 p.m. The mother of the appellant i.e. the victim Sheubai was present at the house. She started preparing meals for her family. However, there was some hot exchange of words and quarrel ensued between the appellant and his mother. It was pacified by the father of the appellant, complainant (PW1). Deceased Smt Sheubai asked her husband i.e. PW-1 to fetch water. Accordingly, he went out taking pitcher and that time he told the appellant ( his son) not to quarrel with his mother and to keep quiet. After sometime, he came back and noticed that his wife – deceased Sheubai was lying on the ground in the house. She had sustained severe bleeding injuries on her face and other parts of the body. He also noticed his son, the appellant standing there with a 4 APEAL.705-04 scythe in his hand. Sensing the gravity of the situation, PW-1 enquired with his son as to what he had done. The appellant threw away the scythe and fled away from the spot. That time PW-1 noticed that dhoti worn by the appellant had some blood stains. 5. On seeing his wife lying on the ground in a pool of blood with severe injuries and his son leaving the spot without offering any explanation regarding the incident, the appellant raised shouts. Noticing the commotion, the neighbours rushed to the spot. One of them was PW-6 Dada Sarke, relative of the appellant. He disclosed that he saw the appellant running away by the road leading to Nhavra with blood stained dhoti on his person. Information was given to the police. First Information Report (F.I.R.) was lodged by PW-1 (father of the appellant). Said F.I.R. is at Exh.11. 6. During the investigation inquest panchnama Exh.14 and spot panchnama Exh.15 were drawn. Dead body of deceased Sheubai was sent for postmortem and report of the postmortem is at Exh.20. Sample of blood stained mud and the scythe were seized from the spot during the spot panchnama. On the next day of the incident i.e. on 19.6.2002 the appellant-accused was put under arrest. Statements of witnesses were recorded. Clothes of the deceased were taken 5 APEAL.705-04 charge of under the panchnama Exh.26. Blood stained dhoti which was allegedly worn by the appellant-accused during commission of the offence, was taken charge of from the house of one Dada Sarke (PW-6). It was seized under panchnama, which was kept in the bucket full of water, it was apparently done by the appellant after visiting the house of PW-6. The said dhoti was seized under the panchnama Exh.16. Muddemal articles seized during the investigation were sent for chemical analysis. Reports of Chemical Analyzer (Exhs 27 and 28) were obtained. On completion of investigation, charge sheet was filed before the Metropolitan Magistrate's Court and matter was committed to the Court of Sessions being Sessions Case No.215/2003. 7. In view of the case of the prosecution as mentioned above, this is rather a very peculiar case wherein a son has killed his mother, since he was not happy with his marriage and was blaming his mother for that unhappiness. Apparently, wife of the appellant, one Thakubai is daughter of maternal uncle of the appellant. In the present case the first informant is father of the appellant and the said first informant had given evidence in the Court during the trial against his own son. 6 APEAL.705-04 8. In order to appreciate the rival submissions, certain factual position is narrated as under : i. there is no eye witness to the actual commission of offence of murder; ii. appellant, deceased and PW-1 are very close relatives, inasmuch as, deceased was mother of appellant and PW-1 is father of appellant and he is also the first informant; iii. case of the prosecution is based on circumstantial evidence, said circumstances being – firstly, that the appellant/accused was present at the scene of offence, i.e. his house, in company with his mother when his father (PW-1) went out of the house for fetching water; secondly, when PW-1 came back after fetching water, he saw the appellant holding a sickle in his hand, his dhoti was having blood stains and the victim was lying on the ground with profusely bleeding injuries on her person; thirdly, PW-1 accosted the appellant (his son) and questioned him as to what had happened, on this the appellant left the spot hurriedly without giving any explanation as to how the victim (his mother) sustained severe injuries. 7 APEAL.705-04 iv. PW-6 (a relative of the appellant) did not support the case of the prosecution and was cross-examined by the prosecutor on the aspect as to appellant coming to the house of the said PW-6 and leaving his blood stained dhoti there and worn another dhoti from the house of PW-6. v. the clothes of the deceased i.e. blouse and saree were smeared with blood of human origin and of “A” group. The sickle which was seized from the spot was having blood on its blade of human origin and of “A” group. The dhoti, seized under the panchnama Exhibit-16, which was worn by the appellant at the time of commission of offence had blood stains of human origin and of “A” group. vi. postmortem report Exh.20 show more than 16 injuries out of them 10 injuries are CLWs and 5 injuries are abrasions, and there was also amputation of right thumb. All these injuries were antemortem, thus, confirming the death of the victim as homicidal. 9. Broad outline of the prosecution evidence can be mentioned as follows :- ➢PW-1 is the first informant (father of appellant/accused). 8 APEAL.705-04 ➢PW-2 is the panch so far as the inquest panchanama, spot panchnama and panchnama regarding seizure of dhoti used by the appellant. PW-2 did not support the case of the prosecution so far as seizure of dhoti (article No.1) from the house of PW-6 Dada Sarke. ➢PW-3 is another panch regarding the seizure of Dhoti used by appellant during the incident of offence. ➢PW-4 is Laxmibai Sarke (sister of the deceased). ➢PW-5 is Dr.Pathan who performed the post-mortem and prepared postmortem report Exh.20. At this juncture, the injuries observed by the said witness during the postmortem are narrated in order to ascertain the gravity of the assault. Said injuries are mentioned in the notes of evidence of PW-5 and are as under :- 1. C.L.W. right side of fore-head 6 x 2 cms. oblique bone deep. 2. C.L.W. right temporal region, 9 x 2 cms., transverse, bone deep. 3. C.L.W. right frontal area, oblique, 8 x 2 cms. bone deep. 4. C.L.W., over face right to left maxillary area horizontal, with skull fracture, 5. C.L.W. right ear to angle of mandible, bone deep 7 x 3 cms. 6. C.L.W. over neck 15 x 4 cms., trachea oesophagus cut, horizontal, 7. C.L.W. left eyebrow, 6 x 2 cms., horizontal, bone deep. 9 APEAL.705-04 8. C.L.W. left medial two fingers with corpo phalangeal joint cut, 9. C.L.W. left knee medially transverse, 9 x 3 cms. bone deep. 10. Right thumb cut from base totally. 11. Abrasion left side of abdomen 4 cm. irregular reddish. 12. Abrasion right side of abdomen, 4 x 2 cm irregular reddish. 13. C.L.W. left elbow below joint, 4 x 2 cms. muscle deep, 14. Abrasions left thigh 4 x 2 cms. irregular, reddish. 15. Abrasion right thigh posteriorly, 9 x 9 cms. 16. Abrasion right shin 5 cms. vertical. PW-5, in his evidence, admitted that all the above injuries are possible by sharp weapon, except injury Nos.11, 12, 14 to 16. PW-5 further stated that there is internal injury corresponding to injury No.4, i.e. fracture of base of scalp. ➢PW-6 is Dada Sarke who is maternal cousin brother of the appellant i.e. son of PW-4 and PW-4 is sister of the deceased. This witness did not support the case of the prosecution in any manner and denied his statement given before the police as to visit of appellant/accused to his house after the incident of assault and giving the dhoti for washing and taking away another dhoti and subsequent seizure of the blood stained dhoti under panchnama. ➢PW-7 is API Shivaji Joshi, who recorded the FIR. 10 APEAL.705-04 ➢PW-8 Sunil Pandharkar is the Investigating Officer through whom the portions marked “A” & “B” proved by the prosecution concerning the evidence of PW-6 (a hostile witness). 10. By taking us through the substantive evidence of the above referred witnesses and mainly through the evidence of PW-1 (first informant), and evidence of panch witnesses, it is strongly submitted by the learned Advocate Shri Warunjikar for the appellant that the circumstances alleged against the appellant are not so convincing so as to rule out any other hypothesis other than guilt of the appellant/accused. In order to substantiate this argument, it is further contended that the chain of circumstances is not complete, inasmuch as, the panch witness PW-2 did not support the case of prosecution on the aspect of seizure of blood stained dhoti, so also PW-6 did not support the case of prosecution as to accused meeting PW-6 and telling about his quarrel and leaving his dhoti in the house of PW-6 for washing. 11. Learned Advocate Shri Warunjikar for the appellant further argued that the prosecution has failed to establish guilt of the accused/appellant beyond reasonable doubt and to substantiate this, following points are raised on behalf of the appellant : 11 APEAL.705-04 I. there are no eye witnesses and no independent witnesses, and that the substantive evidence of Pws 1 & 4 is required to be treated as a partisan evidence, they being relatives of the deceased. II. there is no clinching evidence that the blood stained dhoti allegedly found from the house of PW-6 under the panchnama Exh.16 was worn by the appellant during commission of the offence. III. there is nothing brought before the Sessions Court that the deceased was having blood group “A” and that there is no evidence regarding what was the blood group of the accused. IV. the offence if presumed to be proved will be punishable under Section 304 Part-II of IPC, as there was grave and sudden provocation and in a spur of moment, the appellant/accused lost control of his mind and that it was not pre-meditated act, as the sickle was available at the house which was used by the victim for cutting the vegetables on that evening, was the alternative argument advanced by the Counsel for the appellant. 12 APEAL.705-04 12. So far as the first defence as to no eye witnesses, in our view, this fact in itself cannot be construed as a mitigating circumstance to the case of prosecution. This is more so when the presence of the appellant at the relevant time, his quarrel with his mother and conduct of the appellant immediately leaving spot by throwing the sickle on the ground, are the circumstances sufficient enough to accept the involvement of the appellant in the assault on his mother. Even on preponderance of probabilities, there is nothing brought on record on behalf of the appellant that there was at least remote possibility of some other person inflicting injuries on his mother. Considering the presence of the appellant on that evening with his mother, it was incumbent upon the appellant to explain as to how his mother sustained severe injuries. Though ample opportunity was available to the appellant/accused during the trial by way of cross- examination of the prosecution witnesses and also by way of giving explanation in the statement recorded under Section 313 of Cr.P.C., there is nothing brought before the Sessions Court in this regard. Moreover, the statement recorded under Section 313 of Cr.P.C. reveal that only defence raised is of false implication and the appellant had even denied his presence throughout the incident. 13 APEAL.705-04 13. So far as the second defence is concerned, though PW-6 did not support the case of prosecution and though panch PW-2 acted similarly, there is substantive evidence of PW-3 another panch on the aspect of seizure of dhoti from the house of PW-6. This material is to be viewed in juxtaposition of the report of C.A. so far as finding of blood of “A” group and of human origin on the dhoti and finding of blood of human origin and of “A” group on the clothes of the victim. Bearing in mind that the C.A. report regarding the blood samples of the deceased do not show the blood group due to haemolysing of sample, still for all practical purposes it must be accepted that the blood group of the deceased was of “A” group. Consequently this defence cannot be held good in support of the appellant. 14. So far as the third defence is concerned, in our view, this defence when viewed in juxtaposition of the another material, as discussed above, shall also be of no much significance and consequently cannot be taken as a circumstance in favour of the appellant. 15. Now, lastly coming to the alternate argument that offence is punishable under Section 304 part-II of IPC is concerned, various 14 APEAL.705-04 probabilities are required to be considered. Had it been the case of single blow or use of other material than the sickle, at least there could have been some force in the argument canvassed on behalf of the appellant. Considering the gravity of injuries inflicted on the deceased, which are detailed hereinabove, it cannot be said that the act of the appellant was not to kill the victim (his own mother). Inflicting of about 16 injuries is the main aspect which is going against the appellant to hold that the offence committed is murder, punishable under Section 302 of IPC. 16. Lastly, it is submitted on behalf of the appellant that there was no such a strong motive for the appellant to do away with his own mother only on the count of discord in his married life. This motive propagated by the prosecution, is required to be considered whether acceptable or not. This is to be considered in view of the substantive evidence of Pws-1 & 4. It is apparent that there was a marital discord between the appellant and his wife (who was daughter of his maternal aunt). In what manner a person may behave when not satisfied with his marital life, cannot be predicted. In other words, it can be said that there cannot be any straight jacket formula that under given circumstances of unhappy marriage, how a 15 APEAL.705-04 person will react. In any event, considering the material brought before the learned Sessions Court, and considering the substantive evidence of PW-1 first informant (being real father of the appellant), the finding arrived at by the trial Court cannot be termed as perverse. In other words, there is nothing to interfere with the impugned judgment. 17. In the result, there is no merit in the present Criminal Appeal and the same is accordingly disposed of with following order :- :: O R D E R :: i. Criminal Appeal No.705 of 2004 stands dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)