1 Criminal Appeal No.239 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.239 OF 2009 Kailash Waman Gaikwad, Age-41 years, Occu-Agriculturist, R/o.Manyarkheda, Tq. and Dist. Jalgaon APPELLANT VERSUS The State of Maharashtra, RESPONDENT Ms.Sabahat Kazi, learned counsel for the appellant (Appointed) Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 16/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present criminal appeal, the appellant has questioned the correctness and legality of his conviction u/s. 302 of The IPC, for which he was sentenced to suffer life imprisonment and to pay fine in the sum of Rs.2,000/-, in default to suffer further rigorous imprisonment for 1 month in Sessions Case No.101/2007, vide judgment and order dated 27/02/2009, passed by the Additional Sessions Judge, Jalgaon. 2 Criminal Appeal No.239 of 2009 2. Such of the facts as are necessary for the decision of this appeal can be briefly stated as follows : a) Nishikant Vasant Vishwakar (P.W.No.9) was attached to Nashirabad Police Station. On 30/03/2007, on the complaint (Exh. 22) lodged by Soma Khushal (P.W.No.3), an offence was registered vide CR No.13/2007 u/s. 307 of The IPC against the appellant. After registering the offence, he had visited The Civil Hospital, Jalgaon. He had noticed that victim was not in a position to give her statement. Then he proceeded to place of incident. In the presence of witnesses, he drew spot panchnama (Exh.17). From the place of offence, he seized spade stained with blood, quilt, simple soil and blood mixed soil. Meanwhile, he received the information that victim Rajubai expired while taking the treatment in the hospital. He rushed back to the hospital. He drew inquest panchnama (Exh.25) in the presence of panch witnesses, and then send the body for post mortem. Offence earlier registered u/s. 307 of The IPC was then converted into section 302 of The IPC b) Dr.Bharat Sonwane (P.W.No.6) conducted the autopsy on the dead body of deceased. He found following external injuries on the dead body. 1. Contused lacerated wound on right side, behind ear, curved size 5 cm x 1 cm. bone deep. 2. Right ear pina teared into fragments. 3 Criminal Appeal No.239 of 2009 3. Contused lacerated wound on right side parietal scalp 10 cm. Away and above ear of size ½ cm x ¼ cm x 1 cm. Bone deep. 4. Contused lacerated wound on right side face 3 cm. From ear of size ½ cm x ¼ cm x 1 cm. 5. Contused lacerated wound on right side face on maxilla eminance of size 3 ¼ cm x ½ cm x 1 cm. According to him. injury no.1 to 3 are grevious injuries. All the injuries were caused within 24 hours. On opening the dead body, he had noticed following internal injuries. 1. Injury under scalp collection of blood. Blood fragments right side and separated from parietal temporal. 2. Fracture of skull vault and temporal area depressed 10cm x 7 ½ cm. Into multiple bony fragments. 3. Brain – Memberage ruptured, collection of blood clots on right side cerebral area. Accordingly, he had prepared post mortem notes (Exh.29). According to him, probable cause of death was “coma due to head injuries”. c) During the investigation, he had recorded statement of certain witnesses. Appellant was arrested in the afternoon of the same day around 3.00 p.m,. During the investigation, clothes on the person of deceased were seized under panchnama (Exh.33), seized clothes of appellant/accused under panchnama Exh.31, and clothes of complainant were seized under panchnama Exh.32. After arrest of appellant, he was referred for medical examination and collection 4 Criminal Appeal No.239 of 2009 of blood sample to Civil Hospital Jalgaon alongwith requisition letter Exh.40. During the investigation, he had forwarded seized property collected during the investigation to Chemical Analyser for chemical analysis alongwith forwarding letter Exh.36. After receipt of Chemical Analyser’s report Exh.43 and after completion of investigation, charge sheet was filed in the Court of J.M.F.C. Jalgaon, who after passing requisite committal order, committed the trial to the Court of Sessions, Jalgaon. d) Record and proceeding shows that learned Lower Court framed the charge against the appellant at Exh.9 for an offence punishable u/s. 302 of The IPC to which appellant pleaded not guilty and claimed to be tried. e) Perusal of record and proceeding received from the Lower Court indicate that prosecution has examined in all 9 witnesses to substantiate the charge lavelled against the appellant, including Bhimsing Dhansing Patil (P.W.No.1) through whom prosecution had proved spot panchnama at Exh.17, Mangalabai Bagale (P.W.No.2), wife of brother of deceased who claimed herself to be an eye witness, Soma Khushal Bagale, complainant and eye witness who is the brother of victim deceased, Sunandabai Kailas Gaikwad (P.W.No.4), daughter of appellant and deceased, who is also an eye witness, Raju Damu Patil (P.W.No.5), panch witness to the inquest panchnama (Exh.26), Dr.Bharat Sonwane (P.W.No.6), who had conducted autopsy 5 Criminal Appeal No.239 of 2009 on the dead body of deceased, Dnyandeo Barhate (P.W.No.7), panch witness to the seizure panchnama, Hiralal Mali (P.W.No.8), police constable, who had carried the seized property to the office of Chemical Analyser, Nishikant Vishwakar (P.W.No.9) the Investigation Officer. Learned Trial Court accepted the evidence of eye witnesses and pleased to convict the accused/appellant for an offence punishable u/s. 302 of The IPC, which findings are challenged in this appeal. 3. For the proper appreciation of submissions of learned counsel for appellant, and that of learned A.P.P., it is necessary to advert to the evidence of material witnesses. 4. From the medical evidence on record of Dr.Bharat Sonwane, one fact is crystal clear that the death of deceased Rajubai, wife of appellant is homicidal death. 5. It transpired from the evidence of Mangalabai Bagale (P.W.No.2) that she is wife of brother of wife of appellant. Her house is adjacent to the house of appellant and deceased. Appellant used to harass his wife Rajubai as appellant suspect about her character. He suspect that Rajubai has illicit relations with one Gaju. P.W.No.2 and her husband heard while appellant told his wife that he will kill her on account of her illicit relations with Gaju. P.W.No.2 and her husband entered in the house of appellant. Appellant hit spade on the head of 6 Criminal Appeal No.239 of 2009 Rajubai. Husband of P.W.No.2 snatched spade from the hands of appellant. Thereafter Udaysingh Patil, Sarlabai and others came there. Rajubai was then taken to Civil Hospital, Jalgaon, where she expired in the afternoon. She has stated in her cross examination that appellant and victim were served as labourers in the agricultural field of Sarpanch Bhimsing Patil, which is situated in the same village. Appellant and victim used to go and return from their job together. She has further admitted that in her cross examination that Gaju is the son of sister of appellant and is residing in the same village. Till today, Gaju is residing in the same village. She has stated that at the time of incident, her husband was sleeping. She has also admitted that appellant and deceased have started new construction near their residential premises. 6. It is in the evidence of Soma Khushal Bagale (P.W.No.3) that he is residing in the house adjacent to the house of appellant. Appellant was residing in his house with his wife Rajubai i.e. deceased victim, two daughters namely Sunandabai (P.W.No.4) and Rupabai and two sons. He has further stated in his evidence that he heard quarrel between the appellant and his wife Rajubai. The time was around 5.30 a.m. He went to the house of appellant. Appellant was abusing victim by saying that victim used to send him to Sakegaon and reside with another person. Appellant was abusing 7 Criminal Appeal No.239 of 2009 Rajubai that he would not allow her to alive. Appellant gave spade blow on the head, face and near ear of Rajubai. He snatched the spade from the hands of appellant. Rajubai sustained bleeding injuries. On hearing hue and cry, Sarlabai, Dilip Sonwane and Udaysingh Patil came there. Rajubai was taken taken to Civil Hospital, Jalgaon. On the way to hospital, Rajubai expired. Then he lodged the complaint Exh.22. He was also present at the time of preparing spot panchnama. He identified the spade Article 1 and quilt Article 2, as the articles seized by the police in his presence from the spot while preparing the spot panchnama. 7. He has also stated in his cross examination that appellant and Rajubai worked together in the agricultural land of Sarpanch Bhimsing Patil. Appellant used to go to Sakegaon for labour work. He has further stated that no quarrel took place between appellant and victim prior to the incident in question. He has further stated that Gaju is also residing in the same village. In his cross examination, certain omissions were proved that he has not stated in his statement before police that, “she used to send him to Sakegaon and reside with other person. (In fact this fact find place in complaint, but in some different words.) He had not stated in his statement before police that appellant beat victim with spade on her face and near ear. (The omission is to the extent of “on her face and near her ear” only) He has not stated in his statement before police that Rajubai expired on the way to Civil Hospital. In his further 8 Criminal Appeal No.239 of 2009 cross examination, even though the witness has admitted that construction work was in progress near the house of appellant, still the witness had denied that Rajubai fall on the construction material and sustained head injury. 8. It is in the evidence of Sunandabai Gaikwad (P.W.No.4) daughter of appellant and deceased that the incident occurred at about 5.30 a.m. At that time, she was sleeping in the courtyard of their house alongwith her other sister Rupali and brothers. She has further stated that she woke up from sleep on hearing the abuse by her father/appellant to her mother/victim. Appellant was saying to her mother that, “tu matli aahe, tula marun takil.” Appellant was also saying to the victim that she had illicit relations with Gaju Onkar. Appellant gave spade blow on the head of her mother. Her mother sustained injuries on face, near the ear and head. At that time, her maternal uncle (P.W.No.3) was present there. Her maternal uncle snatched spade from the hands of appellant. Thereafter, Sarlabai came there. Victim was taken to Civil Hospital, Jalgaon in the auto of Udaysingh Patil. She identified the spade before the Court as the Article by which appellant assaulted her mother. She has stated in her cross examination that she is residing jointly with her sister, brother and her parents in their house. Her parents together used to go for labour work. She has further stated that her parents were co-habiting happily without any quarrel. She 9 Criminal Appeal No.239 of 2009 has further stated in her cross examination that the incident took place inside the house. She has further stated that at that time, she was present. Her maternal uncle came in her house in response to her call given for help. Her maternal uncle snatched the spade from the hands of appellant, her father. She had admitted that wife of her maternal uncle did not accompany him at that time. She has further stated that her maternal uncle then called other persons and after their arrival, her mother was shifted to Civil Hospital. In her further cross examination, she had admitted that she had not stated in her police statement that the appellant told her mother/victim that,”tu matli aahe, tula jivant thevnar nahi” and “she had illicit relations with Gaju.” In this background, we have heard the learned counsel for appellant and learned A.P.P. for State. 9. It is urged by the learned counsel for appellant that there is material variance in the testimony of P.W.No.2,3 and 4 as to how the appellant attacked on the victim. Hence according to learned counsel for appellant, their evidence can not be accepted as the evidence of eye witnesses. It is also urged across the bar that the motive behind the crime that appellant was suspecting the character of his deceased wife Rajubai as she is having illicit relations with Gaju is not established. On this point, she has urged that even though Gaju was residing in the same village, Gaju was not examined by the prosecution. Prosecution witness no.3 has given an admission that prior to this incident, no quarrel took place between 10 Criminal Appeal No.239 of 2009 the appellant and deceased. She has urged that it is also admitted in the evidence of P.W.No.4 Sunandabai, daughter of appellant and deceased that her parents were residing/co-habiting happily. Thus according to her, the motive behind the crime that appellant was suspecting that Rajubai have illicit relations with Gaju is not proved. It is further urged that it is stated by P.W.No.2 in her cross examination that at the time of incident, her husband was sleeping. At the same time, P.W.No.4 had stated in her cross examination that when her maternal uncle came to her house in response to her call, at that time, his wife was not with him. It is also urged that in the evidence of P.W.No.2 and 3, they have not deposed about the presence of P.W.No.4 anywhere. Considering these variances, presence of P.W.No.2,3 and 4 at the time of alleged incident is doubtful. It is further urged that according to P.W.No.3 complainant, appellant have assaulted on the face and near the ear of the victim, is proved omission from his statement recorded by the police during the investigation. It is further urged that according to P.W.No.3 complainant, Rajubai expired on the way to hospital, is also proved omission while Rajubai expired in the hospital while she was under treatment. Considering the testimony of P.W.No.5 that he has not proved seizure of clothes of complainant, seizure of clothes of deceased and seizure of clothes of appellant under panchnamas at Exh.31,32 and 33. At the same time, the CA report at Exh.42 and 43 discloses about the finding of blood group of deceased and blood group of appellant, which reports are not helpful to the prosecution. 11 Criminal Appeal No.239 of 2009 Lastly, it is urged that victim Rajubai had sustained injuries due to fall on the building material. This defence taken by the appellant to be accepted. It is urged that in this premises, benefit of doubt be given to the appellant, and the appeal be allowed and appellant be acquitted from the charges of murder of wife Rajubai. 10. In support of her contention, she had placed reliance on the rulling reported in 2007(1) Bom.C.R. (Cri.) 429, in the matter of Subhash Namdeo Patil and others versus State of Maharashtra and others and the rulling reported in 2005 All MR (Cri.) 579 in the matter of Baburao Shankar Kate and others Versus State of Maharashtra. Per contra, learned A.P.P. appearing for the State, while supporting the findings recorded by the Lower Court, has urged that the contradictions in the evidence of prosecution witnesses are minor in nature, hence will not affect the case of the prosecution. It is also urged that these contradictions are not on material aspects. It is further urged that considering the time and place of incident, presence of witnesses is natural, which stands proved. At the time of incident, the victim was in the custody of appellant and appellant failed to prove that he is not the author of the injuries on the person of the deceased. Hence appeal to be dismissed and conviction recorded by the Trial Court be confirmed and upheld. 11. On our appreciation of the evidence led by the prosecution, in the light of above referred rival submissions of learned counsel for 12 Criminal Appeal No.239 of 2009 appellant and learned A.P.P., we have to take a note of certain undisputed facts. It can not be disputed that the incident took place at 5.30 a.m. inside the house of appellant and deceased. Appellant and deceased, being husband and wife were residing jointly alongwith their two daughters and sons in the house, where the incident occurred. In the premise, presence of P.W.No.4 Sunanda is very natural and her presence can not be suspected. P.W.No.4 alongwith her sister and brother was sleeping in the courtyard of their house and on hearing the quarrel between their parents, i.e. the appellant and victim, she entered in the house, also can not be suspected, but to be accepted as a truthful version. It is rightly pointed out by the learned A.P.P. for State that in cases of direct evidence, failure to prove the motive behind the crime is of no consequences. Important admission in the evidence of P.W.No.3 that there was no quarrel between appellant and victim as well as the admission given by P.W.No.4 that appellant and victim were co- habiting happily is of no consequences. From the panchnama of spot of offence, Exh.17, it indicates that the blood stained spade (Article 1) and blood stained quilt (Article 2) were seized from the scene of offence. Evidence of P.W.No.1 panch witness Bhimsing Patil is not shakened in his cross examination and he has proved the contents of the panchnama beyond reasonable doubt. Apart from it, sketch of place of offence as shown alongwith the spot panchnama Exh.17 shows that the residence of complainant Soma Khushal is adjacent towards southern side of the residence of appellant and deceased. 13 Criminal Appeal No.239 of 2009 Residence of panch witness Bhimsing Patil is towards the eastern side while residence of Udaysingh Patil is at the western side. Hence in response to the call of prosecution witnesses, they immediately rushed to the scene of offence, can not be disputed. Even though evidence of P.W.No.2 Mangalabai Bagale is doubtful as an eye witness, even then evidence of P.W.No.3 and 4 require to be accepted as P.W.No.3 was present at the scene of offence, who reached at the house of appellant on hearing the quarrel or in response to the call for help given by P.W.No.4 to be accepted. P.W.No.3 Soma complainant snatched spade from the hands of appellant is supported by the evidence of P.W.No.4, hence require to be accepted. Rajubai was shifted to Civil Hospital, Jalgaon by P.W.No.3 also require to be accepted. 12. We have already accepted that the death of deceased Rajubai is a homicidal death, as stands proved from the medical evidence on record. It is to be held that as the death of Rajubai is homicidal death, is established from the medical evidence and the death was caused because of the assault by the appellant is established from one more circumstance that the blood of blood group ‘B’ i.e. blood group of deceased was found on the spade, the weapon of assault and the blood of blood group ‘B’ was also found on the clothes of appellant as well as the deceased. The appellant was arrested at 3.00 clock of the same day, further corroborate the ocular testimony P.W.No.3 and 4. 14 Criminal Appeal No.239 of 2009 13. We may like to consider one more aspect that in the evidence of P.W.No.3 it is tried to suggest that the victim had sustained injuries due to fall on construction material is negatived by P.W.No.6 Medical Officer as well as there is no reference of finding of blood on the building material in spot panchnama, but the blood was noticed inside the house of appellant. This circumstance also negatived the defence taken by the appellant. It is also to be noted that even though this plea/defence was taken by the appellant, in the course of submissions/arguments across the bar, but in his statement recorded u/s. 313 of Cr.P.C., he has neither taken this defence nor it is established from the material on record, hence this plea of the appellant can not be accepted. 14. After going through the observations of Division Bench in the matter of Subhash Namdeo Patil and others versus State of Maharashtra and others, 2007(1) Bom.C.R. (Cri.) 429, particularly from the discussion of facts in para no.15 and 16 as well as the observations of the Division Bench in the matter of Baburao Shankar Kate and others versus State of Maharashtra, 2005 All M.R. (Cri.) 579, particularly discussion of facts in para no.11, it is clear that on facts, the observations of the Division Bench in these two rullings are not applicable to the facts and circumstances of the case of prosecution in the present appeal. Hence the ratio/observations of the Division Bench in these two rullings are not applicable to the facts and circumstances of the present appeal. In the result, we have 15 Criminal Appeal No.239 of 2009 to accept the finding recorded of the Lower Court that appellant has committed murder of his wife Rajubai stands proved beyond reasonable doubt and the appellant was rightly convicted for an offence punishable u/s. 302 of The IPC. Consequently, no interference is required at the hands of this Court in the present appeal. Hence appeal failed and accordingly stands dismissed. 15. Before parting with the judgment, we have to appreciate the able assistance provided by the appointed learned counsel for appellant to conduct the appeal on behalf of the appellant. We quantify the professional fees of the learned counsel for the appellant in the sum of Rs.5,000/- (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 239-09