1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 226 OF 2005 PRAKASH MADHUKAR MADNE ) residing at Padmale,Tal. Miraj ) District Sangli ) Now lodged at Sangli Jail ) APPELLANT (Accused 1) Vs. THE STATE OF MAHARASHTRA ) through Senior Police Inspector) Sangli Rural Police Station, ) Sangli. ) .. RESPONDENT Mrs. P. U. Badadase i/b Mr. V.P. Patil for appellant Mrs. U.V. Kejariwal, APP for State CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 11TH AUGUST, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 30TH AUGUST, 2008 JUDGMENT:-(Per Smt. Ranjana Desai, J.) 2 . The appellant (for convenience "accused 1") along with one Madhukar Madne (accused 2 - since acquitted) was tried in the court of Additional Sessions Judge, Sangli for offences punishable under Sections 302, 504 read with section 34 of the Indian Penal Code ("I.P.C." for short). 2. According to the prosecution 2/3 days prior to the incident which took place on 18/2/02 at 7 a.m., Ravindra Madne, nephew of accused 2 wanted to go to Kavathe Ekand to see fireworks. As there was nobody to keep company to his wife Sindhu during his absence, he requested Shantabai ("the deceased" for convenience) to allow her to spend the night in her house. The deceased permitted Sindhu to spend night at her house. In the morning accused 2 saw Sindhu coming out of the house of the deceased. Enraged by the fact that Sindhu had spent the night at the house of the deceased, accused 2 started abusing the deceased and her family members in filthy language. Even on the date of the incident i.e. on 18/10/02 at 7 a.m. accused 2 started abusing the deceased and her family members. Therefore, the deceased went upto him to ask him as to why he was persistently abusing her and her 3 family members. She was standing on the road in between their houses. At that time accused 1 was standing on the step leading to his house. While the deceased was talking to accused 2, all of a sudden accused 1 brought an axe and hit the deceased. The blow fell on the left ear of the deceased. The deceased fell down. Accused 1 again hit her with the axe on the left side of her neck due to which the deceased sustained incised wound on the neck. The deceased succumbed to the injuries instantaneously. 3. According to the prosecution at that time her daughter PW 4 Kalpana, her brother Anil, his wife Suvarna, her daughter Sharda and her son Siddhu were standing in front of their house. The axe with which the deceased was assaulted got embedded in the injuries sustained by the deceased. The said axe was removed by both the accused. Accused 1 then went inside the house and accused 2 went away on motor-cycle. Thereafter PW 4 Kalpana and her brother went to Sangli Rural Police Station and lodged the F.I.R. which is at Exh.-25. The investigation was set into motion on the basis of the said F.I.R. The accused came to be arrested. After completion of the investigation the accused 4 came to be charged as aforesaid. 4. In support of its case the prosecution examined eight witnesses. PW 1 Balasaheb Jadhav is the pancha to Exh.-13 and 14, that is the Memorandum of Statement and the panchnama respectively. Exh.-13 contains the statement of accused 1 that he will lead the police to the place where the axe was kept by him and Exh.-14 notes the discovery of the axe at the instance of accused 1. PW 2 is Ananda Madane. He is pancha to the scene of offence panchnama which is at Exh.-16. PW 2 Ananda Madane also claims to be an eye-witness. PW 3 is Rajaram Babar. He is pancha to Exh.-21 under which clothes of accused 1 were taken charge of. He is also pancha to Exh.-22. PW 4 Kalpana is the complainant. PW 5 is Siddhanath Mandale, who is an eye-witness. PW 6 Dr. Ananda More had done post-mortem on the deceased. PW 7 is PHC Mahaveer Chougule. PW 8 is PC Vijaykumar Pujari and PW 9 is PHC Bajrang Patil. They have given the details of investigation. 5. The accused pleaded not guilty to the charge. They claimed to be tried. 5 6. After perusing the evidence on record learned Sessions Judge came to the conclusion that the prosecution had failed to prove its case against accused 2 Madhukar Madane. Accused 2 was, therefore, acquitted. He, however, came to the conclusion that accused 1 had committed offence punishable under Section 302 of the I.P.C. He convicted him for the same and sentenced him to suffer R.I. for life and to pay a fine of Rs.5,000/- and in default to suffer R.I. for six months. He acquitted accused 1 of the offence under Section 504 read with Section 34 of the I.P.C. Being aggrieved by the said judgment and order accused 1 has preferred this appeal. 7. We have heard at some length Mrs. Badadase, learned counsel for the appellant-accused 1 and Ms. Kejariwal, learned APP for the State. 8. Learned counsel for the appellant submitted that learned judge erred in convicting accused 1. She submitted that the prosecution has failed to examine any independent witness. According to learned counsel, learned Sessions Judge erred in placing reliance on PW 2 Ananda Madane, who claims to be an eye-witness. She submitted that Ananda 6 Madane has said in the cross-examination that he used to start from his house for work at about 9. a.m. The incident had taken place at 7 a.m. Therefore, the prosecution case that PW 2 Ananda Madane was present when the incident took place is shrouded in suspicion. Morever though Ananda Madane has stated that he had witnessed the incident, he has also stated that he saw the dead body of the deceased lying in front of the house of accused 1. It is, therefore, doubtful whether this witness has really seen the incident. Learned counsel further submitted that there is no consistency between the evidence of PW 4 Kalpana and evidence of PW 5 Siddhanath. She further submitted that PW 6 Dr. More, who did the post-mortem has stated that the death could have been 6 hours after the last meal. If the meal was taken at about 8-30 p.m. the death could have taken place at 2 a.m. and not at 7 a.m. as contended by the prosecution. Therefore, the prosecution story lacks credibility. Learned counsel submitted that in any case it cannot be said that the prosecution has proved its case beyond reasonable doubt. Learned counsel urged that in the circumstances the impugned judgment and order be set aside and the accused be set at 7 liberty forthwith. 9. Learned APP Ms. Kejariwal on the other hand submitted that the prosecution case is completely borne out by the evidence of eye-witnesses PW 4 Kalpana and PW 5 Siddhanath. Evidence of PW 2 Ananda Madane also lends assurance to the prosecution story. The prosecution has established motive. F.I.R. is registered immediately after the incident. She submitted that blood group of the blood found on the axe recovered at the instance of accused 1 tallies with the blood group of the deceased. Learned APP submitted that the prosecution has, therefore, established its case beyond reasonable doubt against accused 1. There is no merit in the appeal and the appeal be dismissed. 10. PW 6 Dr. Ananda More had done post-mortem on the deceased on 18/10/2002. On post-mortem he found following external injuries on the deceased. (1) Incised wound at left side. body of mandible of extending to left side of occipital region extending half pinna cut with avulsion of skin (verticle inwards 13 Cm. x 4 Cm. upto cervical 8 vertebra, deep side vertical cut at 3rd cervical vertebra. (2) Incised wound over neck, lower aspect of neck; anterior aspect transverse. Trachea cut below thyroid eminence with neck muscle and vessel cut, 11 Cm x 3 Cm. upto spin deep (extending left side to mid-line,7 Cm. & right side 4 Cm. He also found fracture of third cervical vertebra with sharp margin with transaction of cord at fracture side. All the injuries are ante-mortem injuries. On internal examination, Dr. More found the following injuries: . - "Incised injuries under the scalp which is corresponding to injury No.1 of col.No.17, redness present. . - No fracture at skull and vault. . - Fracture at 3rd cervical vertebra, vertically oblique. . - Haematoma at post-cranial fosa, 1 1/2 Cm. x 1Cm." 9 According to Dr. More, the cause of death was shock due to severe haemorrhage due to incised injury over neck with cut through neck. Dr. More observed that stomach of the deceased was empty. So the death was after six hours of the last meal. When axe Article 13 was shown to him, Dr. More stated that all the injuries could have been caused by the said axe. 11. PW 4 Kalpana is the daughter of the deceased. She has stated that Ravindra wanted to go to Kavathe Ekand to see firework. He requested the deceased to allow his wife to stay in their house. Accordingly his wife stayed in their house. She has further stated that house of the accused abuts the house of Ravindra Madane. According to Kalpana when Sindhu, wife of Ravindra returned to her house, accused 2 started abusing and saying as to why they had allowed Sindhu to spend night in their house. Even on the date of incident at about 7 a.m. in the morning accused 2 started abusing them. The deceased went to accused 2 to ask him as to why he was abusing them. She was standing on the road between their house and the house of accused 1. Accused 1 was standing on the step of 10 his house. He went inside his house and brought one axe. He hit the deceased with the axe on her left ear. The deceased fell down. Accused 1 again hit her with the axe on the left side of her neck. The axe got embedded in the wound. The axe was removed by accused 1 and 2. Due to the axe blows she died instantaneously. According to Kalpana at that time she, her brother Ananda, his wife Suvarna, his sister Sharda and her son Siddhu were standing in front of her house. After the incident accused 1 went inside the house and accused 2 went away on the motor-cycle. She then went to Sangli Rural Police Station and lodged the F.I.R. 12. Her evidence was attacked by learned counsel Mrs. Badadase, on the ground that there are omissions in her police statement. It is pointed out that in the police statement Kalpana has not stated that Ravindra came to ask for permission to allow his wife to sleep in their house. We find that this omission is only as regards Ravindra asking for permission. This, in our opinion, is a very insignificant omission which does not affect the credibility of the prosecution case. The second omission, according to learned counsel, is that Kalpana has not stated before the police that 11 the accused removed the axe from the wound of the deceased. In our opinion, this is also a very minor omission. It cannot have any adverse impact on the prosecution case. 13. Lastly it was pointed out that Kalpana has stated that when the incident was going on she was present in front of their house along with Anil, Suvarna, Sharda and Siddhu. In the F.I.R. PW 4 has stated that at that time she, her brother Anil, her sister-in-law Suvarna, her sister Sharda and Siddhu were residing in the said house. The words "standing in front of the house" is no doubt exaggeration. Witnesses do have a tendency to exaggerate. But exaggeration does not always affect the core of the prosecution case, if sans exaggeration their testimony is found to be reliable. Besides PW 4 and 5 are rustic witnesses. They are Ramoshees. This fact will have to be kept in mind while evaluating their evidence. Slight exaggeration made by PW 4 Kalpana does not discredit her evidence. 14. PW 5 Siddhanath was also present when the incident took place. He has also stated that at the request of Ravindra, his wife Sindhu was 12 allowed to sleep in their house and when Sindhu went to her house accused 2 started abusing them. He has further stated that again in the morning of 17/10/02 accused 2 started abusing them. According to him his aunt Kalpana and Suvarna were standing outside the house and accused 2 was standing in front of their house. Accused 1 was standing at the door of their house. Siddhanath has further gone on to say that the deceased went to accused 2 and asked him as to why he was abusing. Accused 1 went inside the house and brought one axe. He hit the deceased with the axe on her left ear. The deceased fell down. Accused 1 again hit her with the axe on left side of her neck. The axe got embedded in the wound. It was removed by both the accused. When axe Article-13 was shown to him, he stated that it was the same axe with which the accused hit the deceased. According to Siddhnath accused 2 went away on a motor-cycle and accused 1 went inside a shed like structure and kept the axe and went away. 15. We find evidence of Siddhanath to be consistent and cogent. No omissions of any nature have been brought on record in his cross-examination. We have no hesitation in 13 holding that PW 5 Siddhanath is a reliable witness. 16. It is pointed out that while PW 4 has stated that accused 1 went inside the house PW 5 has stated that accused 1 went in a shed like structure and kept the axe and went away. Therefore, there is a great variance in the statement of these two witnesses. It is urged that, therefore, the discovery of axe at the instance of accused 1 is also suspect. In our opinion, this is a very minor discrepancy. PW 1 Balasaheb Jadhav who is pancha to the discovery panchnama has stated that accused 1 led the police to a shed like structure made of thatch which was situated to the left side of his house and took out the axe from there. Therefore, the word house used by the PW 4 Kalpana obviously refers to the said structure which is to the left side of his house. The defence cannot take any advantage of this minor discrepancy. 17. In our opinion, evidence of PW 4 Kalpana and PW 5 Siddhanath has a ring of truth. They corroborate each other. It is safe to rely on their evidence. It is pertinent to note that in his statement recorded under Section 313 of the Code of Criminal Procedure, accused 1 has accepted 14 the situation of his house and the house of the complainant. He has also accepted that PW 4 and PW 5 were staying with the deceased. Presence of PW 4 and PW 5 at the scene of offence is, therefore, natural. In the above circumstances, we are of the opinion that the prosecution case is borne out by the evidence of PW 4 and PW 5. 18. PW 2 Ananda Madane is pancha to inquest panchnama Exh.-16. He claims to be an eye-witness. He has stated that he had seen accused 1 hitting the deceased with an axe over her neck. It is pointed out that the police have not recorded the statement of this witness. It is contended that this witness has stated in the cross-examination that he used to leave his house at 9 a.m. and, therefore, he could not have been present to witness the incident at 7 a.m. in the morning. It is also pointed out that he has stated that the deceased was lying on the road in front of the house of accused 1 and, therefore, he could not have seen the assault. It is pertinent to note that accused 1 has admitted in his evidence that house of this witness is near his house. Morever in his cross-examination there is no challenge to his claim that he had seen the incident. We, 15 therefore, do not find anything wrong in upholding his claim that he had seen the incident. In any case, even if claim of PW 2 Ananda Madane that he had seen the incident is kept out of consideration, the prosecution can succeed in establishing its case on the basis of the other evidence particularly the evidence of PW 4 Kalpana and PW 5 Siddhanath. Apart from this evidence there is also evidence of discovery of an axe at the instance of accused 1 and finding of bloodstains on the clothes of accused 1 and on the said axe. 19. We shall now turn to discovery of the axe at the instance of accused 1. Evidence of PW 8 PC Vijaykumar Pujari indicates that PSI Suryavanshi, who was investigating the case died. PW 8 PC Pujari was working with him and, therefore, he has deposed about certain steps taken in the investigation. According to him on 23/10/2002 accused 1 made a statement that he would produce an axe. His statement was recorded. Memorandum of statement is at Exh.-13. He then led the police to one shed like structure situated near his house. From the said structure he took out one axe. It was seized under panchnama. That panchnama is at Exh.-14. PW 8 P C Pujari has identified the 16 signatures of PSI Suryavanshi on Exh.-13 and Exh.-14. Exh.-14 describes the said axe as blood stained with hair sticking to it. PW 1 Balasaheb Jadhav is pancha to panchnama Exh.-13 and Exh.-14. He has also said that accused 1 took out the axe from a shed like structure made up of thatch; that the axe had blood stains on it and that some hair was sticking to it. He has stood firm in the cross-examination. We find no difficulty in relying on the evidence of PW 1 Balasaheb Jadhav. 20. We have already referred to the slight inconsistency in the statement of PW 4 Kalpana and PW 5 Siddhnath about the place where accused 1 had gone after attacking the deceased with the axe. PW 4 has said that accused 1 went home and PW 5 has said that he went inside a shed like structure and kept the axe and went away. We have also noted that PW 1 Balasaheb, the pancha to Exh.-13 and 14 has stated that to the left side of the house of accused 1 there was shed-like structure made up of thatch and, therefore, reference to the house made by PW 4 Kalpana is not of much significance. On the basis of the above evidence, we have no hesitation in holding that the prosecution has proved that accused 1 led the police to a shed-like 17 structure and took out an axe from there. 21. PW 7 PC Mahavir Chougule had made spot panchnama Exh.-16. He has stated that he seized sample of blood stained earth and hair from the spot of incident and also from the house of accused 1. He had collected the blood with cotton swab. PW 2 Ananda Madane is pancha to Exh. 16. He has deposed about panchnama Exh. 16. He has been cross-examined. However, the defence has not been able to make any dent in his evidence. Therefore, the prosecution has proved that sample of blood found at the place of incident and in the house of accused 1 was taken by the police under panchnama. PW 7 PC Chougule has also deposed about seizure of the clothes of the deceased. That panchnama is at Exh. 11. Exh. 44 is the report of the Chemical Analyser. As per this report blood found in the house of accused 1 was human. As per Chemical Analyser’s report Exh.-45 blood group of the deceased was ’A’. Chemical Analyser’s report Exh.-44 shows that on the axe recovered at the instance of accused 1 human blood of ’A’ group was found. This in our opinion is a clinching circumstance against accused 1. PW 3 Rajaram Babar is pancha to Exh.-21 under which clothes of accused 18 1 were seized. According to PW 3 those clothes were stained with blood. It is so stated in panchanama Exh.-21. As per Chemical Analyser’s report Exh.-44 the said blood was human. In our opinion, this evidence lends support to the evidence of the eye-witnesses. 22. We must now deal with the argument of learned counsel Mrs. Badadase based on the evidence of PW 6 Dr. More that the incident must have taken place at 2 a.m. and not at 7 a.m. as alleged by the prosecution and, therefore, the prosecution story is concocted. We find no substance in this argument. Dr. More has stated that stomach of the deceased was empty and the death was after six hours of last meal. It is contended that, if the deceased had her meal at 8-30 p.m. the death must have occurred at about 2 a.m. and not at 7 a.m. There is a fallacy in this argument. If the meal was taken at 8-30 p.m., six hours after last meal could be 2 a.m. or could be 7 a.m. also. Therefore, the prosecution case that the death took place at 7 a.m. cannot be discarded on that count. 23. In the ultimate analysis, we feel that the trial court has rightly convicted accused 1. The 19 prosecution has proved its case against him to the hilt. No interference is necessary with the impugned judgment and order. The appeal is, therefore, dismissed. JUDGE JUDGE IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 226 OF 2005 PRAKASH MADHUKAR MADNE .. APPELLANT 20 (Accused 1) Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mrs. P. U. Badadase i/b Mr. V.P. Patil for appellant Mrs. U.V. Kejariwal, APP for State CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ. DATED:30/8/2008 OPERATIVE PART OF THE ORDER: . For the reasons stated in the judgment, this court has dismissed the appeal. JUDGE JUDGE