cr. apeal 311­05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 311 OF 2005 Sudhakar Madhukar More ] Convict No. C/13399, ] Presently lodged at Yerawada Central Prison] Pune . ] Appellant / Org. Accused Vs The State of Maharashtra ] Respondent (At instance of Pandharpur Police Station C.R. No. 189 of 2001) Ms. D.M. Shah, Advocate appointed for the Appellant Mr. Y.S. Shinde, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 15th DECEMBER, 2010. PRONOUNCED ON : 22nd DECEMBER, 2010. JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 27.02.2003 passed by the learned Additional Sessions Judge, Pandharpur in Sessions Case No. 33 of 2002. By the said judgment and order, the learned Sessions Judge convicted the appellant 1 cr. apeal 311­05.doc under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 500/-, in default RI for one month. 2. The prosecution case briefly stated is as under: Pushpa (deceased) was residing with her husband PW 4 Navnath Jadhav aged 31 years in a house in their agricultural land along with their three sons, a daughter and parents of Navnath. Kondabai is sister of Navnath. She is the mother of the appellant. Since last few years, she had come to reside with Navnath and his family along with her two sons i.e Sudhakar (appellant) and Audumbar. They used to reside in a house (wasti) behind the house (Wasti) of PW 4 Navnath. On 10.11.2001, Navnath had gone to village Khardi as election to Pandurang Co-op Sugar Factory were being held. At about 01.30 p.m., he was told that somebody in his family had died, hence he rushed to their house in a jeep and saw his wife Pushpa lying dead in a pool of blood in their house. There was injury on her head which was still bleeding. Her hair were found scattered. Her saree was found in a loosened condition. Blood stained crowbar (Article 3) was found near the dead body. On enquiry, Navnath came to know that at about 01.00 p.m., his mother PW 9 Girjabai and his cousin brother PW 6 Suryakant had heard barking of dogs near their house,hence they rushed there and saw Sudhakar running away from the house. They also saw Pushpa lying dead with 2 cr. apeal 311­05.doc bleeding injury on her head, hence, Navnath went to Pandharpur Police Station. and F.I.R. bearing C.R. NO. 189 of 2001 came to be registered under Section 302 of IPC and investigation started. The body of Pushpa was sent for postmortem. PW 8 Dr. Mohite conducted the postmortem on the dead body of Pushpa. He found following injuries on her person: 1. Contused lacerated wound above the left ear of the size of 2 cm. X 1.5 cm X bone deep. This injury was bleeding. 2. Contused lacerated wound on the left side of the vertex, middle 1/3rd in the left side of the vertex, middle 1/3rd in the anterior posterior direction with fracture underlying the bone, it was of the size of 4 cm X 1.5 cm X bone deep. 3. Abraded contusion over the left forearm distle 1/3rd, size of the injury was 4 cm X 3 cm. He had also noticed right black eye. Scratch mark on the left side of the neck it the size of 1 cm X 0.5 cm Scratch marks two in number below the chin, size of these injuries was 1 cm X 0.5 cm He had noticed subtutanious hemorrhage in this injury. On internal examination, he noticed fracture of wall of skull. He also noticed sub dural hemorrhage on the left temporal side. Blood clot of about 200 mls was found. 3 cr. apeal 311­05.doc All these injuries, according to him, were ante mortem and cause of death was due to cardiac respiratory failure due to intracranial hemorrhage due to head injury. According to him, the injuries were possible by crowbar (Article 3) and the injuries were sufficient to cause death in ordinary course of nature. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that there was election of Pandurang Co-op Sugar Factory. He belongs to Shivsena party whereas PW 4 Navnath belongs to Congress party. Due to this, there were strained relations between them. His further case is that Pushpa sustained accidental injury and PW 4 Navnath has taken advantage of the said fact and falsely implicated him. After considering the defence of the accused and after going through the entire evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 cr. apeal 311­05.doc 4. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the judgment and order does not call for any interference. 5. There is no eye witness in the present case and this case is solely based on circumstantial evidence. There are two circumstances against the accused. First circumstance is that he was seen running out of the house at about 01.00 p.m and there is discovery of blood stained clothes at his instance which bore blood stains of 'A' group that is blood group of the deceased. 6. In order to prove the first circumstance, the prosecution has examined PW 6 Suryakant, PW 9 Girjabai and PW 4 Navnath. PW 6 Suryakant has stated that his land and the land of Navnath was adjacent to each other. The accused along with his mother Kondabai and brother used to reside behind the house of Navnath. He has stated that on the date of the incident, PW 9 Girjabai and Kondabai were weeding grass in their agricultural land. At about noontime, they heard barking of dogs from the house of Navnath, hence they 5 cr. apeal 311­05.doc rushed towards the house of Navnath. When they rushed towards the house of Navnath, they saw the accused Sudhakar running away from there. Girjabai and Kondabai also came there. They saw Pushpa lying in the hut with bleeding injuries on her head. She died a minute or two after these persons went into the hut. After half an hour, Navnath reached his house. On seeing the dead body of his wife, he started crying. 7. Learned advocate for the appellant submitted that there are number of omissions in the evidence of PW 6 Suryakant and hence, his evidence cannot be believed. However, as far as the evidence of Sudhakar which is reproduced above by us is concerned, there are no omissions or contradictions, hence we find that we can safely rely on his evidence that at about noon time, they heard dogs barking near the house of Navnath and hence, they rushed to the house and saw the accused running away from the house. On entering the house, they saw wife of Navnath lying with injury on her head and she died soon thereafter. Thus, the evidence of this witness establishes the presence of the accused in the house of the deceased at the relevant time. 8. PW 9 Girjabai has stated that they had agricultural land at village Bohali and they reside in their house in the 6 cr. apeal 311­05.doc said land. The accused is the son of Kondabai who is her elder daughter i.e the accused is grandson of Girjabai. As the husband of Kondabai died two years ago, Kondabai and her two sons Audumbar and Sudhakar (appellant) used to reside in a house behind the house of Girjabai. They used to cultivate two acres of land given to them by Navnath. She has stated that on the day of the incident at about 01.00 p.m, she heard sound of barking of dogs at their house, hence, PW 6 Suryakant, she and Kondabai rushed to that place. They saw the accused running out of the house and running away towards his house. On entering her house, Girjabai saw Pushpa lying in a pool of blood. Clothes and hair of Pushpa were scattered. One blood stained crowbar was found near the dead body. She offered water to Pushpa but Pushpa could not drink it and she died. Girjabai went towards the house of the accused and she saw that the accused had taken a bundle of clothes and proceeded towards nalla. Nothing has been elicited in the cross-examination of this witness so as to disbelieve her testimony. 9. The testimony of both PW 6 Suryakant and PW 9 Girjabai is corroborated by PW 5 Bhagawant. He has stated that the accused and his mother were residing behind the house of Navnath. On the day of the incident at about 01.00 p.m., when he was proceeding towards his house, he heard barking of 7 cr. apeal 311­05.doc dogs. He saw the accused coming running from his own house towards nalla with bundle of clothes in his hand. 10. The evidence of PW 6 Suryakant and PW 9 Girjabai is also corroborated by the evidence of PW 4 Navnath. He has stated that on the day of the incident, he had gone to village Khardi to attend the election for Pandurang Co-op Sugar Factory. He was informed that somebody from his family had died, hence, he rushed home in a jeep which was used for the purpose of election. On reaching the house, he saw that his wife was lying in a pool of blood and her saree and her hair were found in scattered position. He found her saree to be loosened. There was injury on her head which was bleeding. One blood stained crowbar was lying nearby. His mother PW 9 Girjabai and his cousin brother PW 6 Suryakant told him that dogs were barking at noon time and they had seen Sudhakar (accused) running away form the spot, hence, Navnath went to Pandharpur Police Station and lodged his FIR. 11. We find that in the present case, FIR has been promptly lodged by PW4 Navnath. So also, the statement of PW 9 Girjabai and PW 6 Suryakant were recorded on the very same day. Girjabai is the maternal grandmother of the appellant. She would not have falsely implicated her son grandson. There is nothing on record to show that she had any animosity 8 cr. apeal 311­05.doc or any grudge against the accused. In fact, it has come on record that after the father of the appellant expired, the appellant along with his mother and brother came to reside with PW 4 Navnath and his family and they were given two acres of land to cultivate of which 1/3 proceeds went to the appellant and his family. Thus, if the defence of the accused is to be believed that there was enmity between him and Navnath on account of election of Pandurang co-op Sugar Factory, Navnath would not have allowed the accused and his family to stay behind their house and he would not have given then two acres of land to cultivate. Thus, we do not find any merit in the defence raised by the accused that on account of being in rival political parties, the witnesses have falsely implicated him. 12. Another circumstance which connects the appellant with the crime is that blood stained clothes came to be recovered at his instance. PW 3 Pawar is the panch witness on this aspect and panchanama relating to memorandum statement and discovery of blood stained clothes are at Exh 17 and Exh 17A. PW 3 Pawar has stated that he was called to the police station. The accused made a statement before him that he will produce his clothes which he had concealed in the crop of Jawar of one Mane, hence they proceeded to the spot in a jeep. After about 12 kms, the accused got down from the jeep 9 cr. apeal 311­05.doc and started walking to an agricultural land having standing crop of Jawar. He produced the clothes from the said crop of Jawar, those were blood stained pant and shirt (Articles 10 and 11). As per the C.A. report Exh 6, the pant and shirt were found to have human blood of 'A' group. It is pertinent to note that the clothes of the deceased were also soaked with blood of 'A' group from which we can safely conclude that blood of the deceased was found on the clothes of the accused. The accused had not given any explanation in relation to the finding of blood stains of 'A' group on his clothes. The Supreme Court in case of Khujji alias Surendra Tiwari Vs State of Madhya Pradesh reported in AIR 1991 SUPREME COURT 1853 observed that if the group of blood on the weapon or clothes of the accused is not-determined, it does not make the circumstance of no consequence. It has further observed that finding of human blood on weapon and clothes of the accused lends corroboration to the prosecution case, more so, when the accused has not explained presence of human blood on the said articles. 13. In the case of Gura Singh Vs State of Rajasthan reported in (2001) 2 SCC 205, the Supreme Court observed that just because the specific group of human blood found on clothes of accused could not be detected, the accused cannot 10 cr. apeal 311­05.doc claim any benefit. The Supreme Court further observed that they did not find any substance in the submission of learned counsel for the appellant that in absence of report regarding origin of blood, the trial Court could not have convicted the accused. In the said case, the C.A. report showed that human blood was found on the clothes. The Supreme Court categorically held that even if the blood group could not be ascertained, no bonus can be conferred on the accused to claim any benefit from this fact. 14. Learned APP tried to submit that there is one another circumstance which connects the appellant with the crime that is the appellant had motive to commit the crime. He submitted that Pushpa was a young lady which can be seen from the fact that the age of her husband Navnath was 31 years old at the time of incident. He drew our attention to the fact that PW 4 Navnath, PW 9 Girjabai and PW 6 Suryakant have stated that hair and clothes of Pushpa were scattered i.e her saree was found loosened. He submitted that this shows that the accused had made some unwanted advanced towards Pushpa which she did not reciprocate hence, in a fit of anger, the appellant had assaulted her and caused her death. He pointed out averments of PW 4 Navnath in his FIR wherein he has stated that the accused had demanded that Pushpa keep physical relations with him which she refused, hence the 11 cr. apeal 311­05.doc appellant assaulted Pushpa and caused her death. However, as far as this averment is concerned, we cannot take it into consideration because the complainant in his substantive evidence has not stated so. The learned APP also drew our attention to the photographs of deceased Pushpa which shows that saree was in a loosened condition and it had partly come off. However, as far as motive is concerned, we find that there is no sufficient evidence on record to prove the motive, hence we are not taking this aspect into consideration. 15. Looking to all the evidence on record, we find that there is sufficient material to connect the appellant with the crime, hence no case is made out for interference. In the result, we do not see any merit in this appeal and the same deserves to be dismissed and it is accordingly dismissed. The conviction and sentence imposed by the learned Sessions Judge is hereby confirmed. The appellant to serve out the remaining sentence. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA, J ] 12 cr. apeal 311­05.doc 13