1 Criminal Appeal No.446 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.446 OF 2010 Parmeshwar Narsing Pawara, Age-40 years, Occu-Labour, R/o.Amba Pujaryapada, Tal.Shirpur, Dist. Dhule APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.C.V.Dharurkar, 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 : 28/07/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of the IPC, for which he was sentenced to suffer imprisonment for life by Sessions Judge, Dhule in Sessions Case No. 8/2010 by his judgment dated 30/08/2010, has questioned the correctness of his conviction and sentence. 2. Prosecution has unfolded the case before the Trial Court as follows : (a) On 13/10/2009, A.P.I. Manjit Singh Bagga (P.W.No.7) attached to Shirpur Police Station in Dist. Dhule, on the complaint 2 Criminal Appeal No.446 of 2010 (Exh.35) lodged by Narsing Pawara (P.W.No.1), registered an offence at CR No.241/2009 u/s. 302 of the IPC against the appellant about killing of Surmibai (wife of appellant and daughter in law of P.W.No.1). The investigation in the said crime was taken over by P.W.No.7. (b) During the investigation, P.W.No.7 visited scene of offence i.e. residential house of appellant where dead body of female was found. The dead body was identified by the complainant as the dead body of his daughter in law Surmibai, wife of appellant. He drew inquest panchnama Exh.9 on the dead body. Photographs of the dead body were taken while drawing inquest panchnama. The dead body was then referred for autopsy to Sub District Hospital, Shirpur. (c) Dr.Nitin Waman Nikam (P.W.No.6) the Medical Officer then attached to Sub District Hospital, Shirpur conducted autopsy on the dead body on 13/10/2009 around 8.30 a.m. On examination of the dead body, he found following external injuries - 1. Penetrating injury 1 inch in length x 4 inch in depth over left 4 th midelavilular line with fracture at costochondral junction. On internal examination, he found following injuries : 1. Haemothorax with punctured pleura on left side. 2. Congested cut injury/punctured at left ventricle apex 2 inch deep. He had opined that the injuries were anti-mortem in nature. According to him, cause of death was due to hemorrhagic shock due 3 Criminal Appeal No.446 of 2010 to penetrating injury over heart and lungs with excessive internal bleeding. He opined that the injuries mentioned against column no. 20 are sufficient to cause death in the natural course. These injuries can be caused due to sharp cutting instrument like knife. Accordingly, he had prepared and issued post mortem report Exh.22. (d) During further investigation, P.W.No.7 drew spot panchnama (Exh.17) in presence of witnesses after the dead body was referred for autopsy. While drawing spot panchnama, he had seized one rope (Article D) allegedly used by the appellant to attempt suicide. On the same day, he had recorded statements of witnesses Prakash Parmeshwar Pawara (P.W.No.3) Dilip Parneshwar Pawara (P.W.No.4), the sons of deceased and appellant and also certain other witnesses. During further investigation, the knife removed from the hands of appellant was produced by the complainant in the police station. It was seized in presence of witnesses under the panchnama Exh.30. While conducting autopsy, clothes on the person of the deceased were recovered under panchnama Exh.19. Appellant came to be arrested on the same day at about 1.05 p.m. Clothes on his person were seized under seizure panchnama/arrest panchnama Exh.10. During further investigation, property seized during the investigation was sent for chemical analysis alongwith the covering letter (Exh.39). In due course, report of Chemical Analyser (Exh.40) and (Exh.41) were received. Further to the completion of investigation, charge sheet was filed against the appellant accused in 4 Criminal Appeal No.446 of 2010 the Court of J.M.F.C. Shirpur. (e) On committal of trial to the Court of Sessions, learned Trial Court framed charge against the appellant accused at Exh.5 for an offence punishable u/s. 302, 309 of the IPC, to which appellant accused pleaded not guilty and claimed to be tried. During the trial, to prove the guilt of the appellant, prosecution had examined in all 7 witnesses. Defence of the appellant/accused was of total denial. On appreciation of the evidence laid by the prosecution, learned Trial Court pleased to convict the appellant accused for an offence punishable u/s. 302 of the IPC as stated above while acquitted the appellant accused u/s. 309 of the IPC. (f) During the trial, out of the 7 witnesses examined by the prosecution, complainant P.W.No.1 Narsing Pawara, father of the appellant, Prakash Pawara and Dilip Pawara, sons of the appellant have not supported the case of prosecution. But from their evidence, it is reflected that at the material time, in the room where the incident of assault on deceased Surmibai Pawara took place, only deceased and appellant were present. This fact reflects from the evidence of P.W.No.3 and 4 before they were declared hostile. To that extent, they have supported the case of prosecution. It is to be noted that presence of appellant alongwith the deceased in his residential premises at the time of alleged incident, is not challenged by the defence, in the cross examination of P.W.No.3 and 4. Considering 5 Criminal Appeal No.446 of 2010 this aspect, mere denial of the case of prosecution is not sufficient to establish that at the material time, the appellant was not present at the spot where deceased Surmibai sustained the injuries, which further resulted in her death. 3. In the light of this position, for better appreciation of the submissions of learned counsel for appellant and of learned A.P.P. for State, it is necessary to advert to the evidence of the remaining witnesses on which the conviction of the appellant is based. 4. From the evidence of Dr.Nitin Nikam, Medical Officer, who had conducted autopsy on the dead body of Surmibai, it reveals that the dead body was brought in the hospital at about 5.00 a.m. and immediately, he conducted post mortem on the dead body. The only suggestion put to this witness in his cross examination, which was denied by him that such injuries are possible due to fall. But his answer to the said suggestion was very specific that the injury found on the person of the deceased was caused due to sharp cutting instrument like knife. The injuries mentioned in coloumn no.17 are corresponding to injury no.20 mentioned in the post mortem report Exh.22 and this injury is sufficient to cause death of the victim in the natural course. From this evidence, the fact is established that the death of deceased Surmibai is a homicidal death. 5. As stated earlier that P.W.No.1 Narsing, P.W.No.3 Prakash, 6 Criminal Appeal No.446 of 2010 P.W.No.4 Dilip, the father and sons of the appellant, have not supported the case of the prosecution. P.W.No.1 Narsing had denied total case of the prosecution and had gone to the extent that even though he admitted the thumb impression on the complaing as of his thumb impression, but stated that the contents therein were not recorded as per his narration. He has also denied that the contents of the complaint were explained to him in his language i.e. in pawara language, which he understood and then he put his thumb impression on the complaint. It is settled legal position that the FIR/complaint itself is not a substantive piece of evidence but the contents therein required to be proved by leading cogent evidence to that effect. The complaint was exhibited in the evidence of Investigation Officer, so also, in the evidence of P.W.No.2 Phulsing, however, it can not be said that the facts stated therein were proved by leading cogent evidence to that effect. Evidence of P.W.No.2 is relevant to the extent that he accompanied P.W.No.1 when P.W.No.1 had been to the police station and he had attested the thumb impression of the complainant P.W.No.1 in the police station. In his cross examination, P.W.No.2 also made a statement that the contents of the complaint are not known to him. Thus evidence of P.W.No.1 and 2 is require not to be considered. 6. It is in the evidence of P.W.No.3 Prakash that appellant is his father, complainant is his grand father, P.W.No.4 Dilip is his brother. At the material time, he was jointly residing alongwith his brother 7 Criminal Appeal No.446 of 2010 Dilip, father appellant and deceased mother. He had no knowledge as to how his mother was expired. But according to him, at the material time, his parents appellant and deceased were inside the house. On hearing shouts of his mother, he went inside the house and noticed that his mother had sustained the injuries on her chest. He has further stated that he had no knowledge as to how his mother had sustained the injuries. He was not cross examined by the defence. Evidence of P.W.No.4 Dilip is in the same manner as per the evidence of P.W.No.3 Prakash. Dilip was also not cross examined by the defence. Even though P.W.No.3 and 4 have not fully supported the case of prosecution, but the fact revealed from their evidence that at the time of incident, their parents, appellant and deceased, were only present in the house. On hearing her shouts, they entered in the house and have seen that their father appellant was present there and deceased had sustained injury on her chest. As this fact is not disputed, we have to safely infer that at the material time, deceased was in exclusive custody of the appellant. 7. We have heard learned counsel for appellant and learned A.P.P. for State in the light of this evidence. Before considering the ocular evidence, which we have discussed above, we have to take into consideration the fact that there is no challenge to the recovery of clothes on the person of the appellant and recovery of knife produced by P.W.No.1 in the police station, which was seized under the panchnama Exh.30. The fact is also not challenged that the seized 8 Criminal Appeal No.446 of 2010 articles were sent to Chemical Analyser, of which the reports are at Exh.40 and 41. Exh.40 and 41 shows that the blood found on the on the clothes of the appellant and on the knife was matched with each other which is of the blood group of the deceased. 8. During the course of submissions across the bar, the only point pressed for consideration by the learned counsel for appellant that considering the evidence on record, it is to be inferred that because of quarrel took place between the appellant and the deceased, in the hit of anger, appellant assaulted deceased, which ultimately resulted in her death. It is further urged on behalf of learned counsel for appellant that medical evidence about the post mortem given by P.W.No.6 Dr.Nikam specifically indicates that only one injury was found on the person of the deceased. According to learned counsel for appellant, in this scenario, case of the appellant do not cover under the ambit of an offence punishable u/s. 300, but it covers under exception 4 to section 300 of the IPC as according to learned counsel for appellant, the assault on the deceased at the hands of appellant was due to sudden provocation and even though the death was homicidal death, but it will not amount to murder with intention, and according to him, the case of the appellant will squarely cover u/s. 304 (II) of the IPC. In support of his submissions, learned counsel for appellant placed his reliance on the observations of the Apex Court in the matter of Chamru Budwa versus State of M.P., AIR 1954 Supreme Court 652, Rajwant 9 Criminal Appeal No.446 of 2010 Singh and another versus State of Kerala, 1966 Cri.L.J. 1509, Prakash Chand versus State of H.P. Lin Criminal Appeal No. 830/2004 decided on 09/08/2004 and urged that in the set of facts, conviction of the appellant be reduced from the offence punishable u/s. 302 to section 304(I) or u/s. 304(II) of the IPC. Reliance is also placed on the observations made in para no.23 by the Division Bench of this Court in the matter of Suresh Chaitya Konkani versus State of Maharashtra and another, 2009(3) LJ Soft 69 = 2009(1) AIR Bom.R. 299 = 2009 All MR (Cri) 18 . 9. Per contra, learned A.P.P. appearing for State supports the finding and conclusion drawn by the learned Lower Court convicting the appellant for an offence punishable u/s. 302 of the IPC, and prayed for dismissal of the appeal. 10. On careful consideration of the submissions of learned counsel for appellant and of learned A.P.P. for State, and on re-appreciation of the evidence on record, we are of the considered view that at the time of commission of an offence, appellant and deceased were the only persons present inside the house, and the deceased was in exclusive company of the appellant. Then it is for the appellant to explain as to how deceased had sustained injuries which ultimately resulted in her death. Admittedly, P.W.No.3 and P.W.No.4 Prakash and Dilip were not cross examined by the appellant in defence. So also in his examination u/s. 313 of the Cr.P.C., the appellant has only denied 10 Criminal Appeal No.446 of 2010 the case of the prosecution. In answer to questions no.25,26,27, he had stated that he did not know as to why the witnesses are deposing against him, and he do not want to lead any evidence in defence nor he has to state anything more about the case of prosecution. Thus from the evidence recorded before the Lower Court one fact is clear that at the time of incident, only appellant and deceased were present in the room, where the incident took place. What happened before the incident, is within the exclusive knowledge of the appellant. Appellant has not explained as to how the incident occurred and how deceased sustained injuries. One more aspect require to be considered that during the alleged quarrel as urged by the learned counsel for appellant, whether the deceased have provoked the appellant and due to that provocation, in the hit of anger, appellant assaulted the deceased, is not established by the appellant. If the fact of provocation at the hands of deceased was not established then the case of the appellant will not cover under explanation 4 to section 300 that he has assaulted the deceased due to sudden provocation during the alleged incident. In absence of any such evidence brought on record, either by way of explanation in the cross examination of the prosecution witnesses or in the examination u/s. 313 of the Cr.P.C. of the appellant, it can not be inferred that due to sudden provocation, in the hit an of anger, the appellant assaulted the deceased, which ultimately resulted in her death. In this background, the observations of the Supreme Court in the various judgments cited supra by the learned counsel appellants and 11 Criminal Appeal No.446 of 2010 the observations of the Division Bench in the matter of Suresh Konkani (cited supra) will not be applicable to the present case. As discussed earlier, it is proved that the death of the deceased is homicidal death, and it was caused due to assault on the person of the deceased at the hands of the appellant, which fact clearly established by the prosecution without any reasonable doubt, hence the case of the appellant do not cover under any of the exceptions to section 300 of the IPC which can attract the provisions either of Part I or II of section 304 of the IPC, hence we are of the considered view that the learned Trial Court has rightly concluded that the appellant is guilty for an offence punishable u/s. 302 of the IPC. In substance, the appeal is devoid of any merit and liable to be dismissed. Accordingly, we dismiss the appeal and confirm the conviction and sentence of the appellant awarded by the learned Lower Court. 11. Before parting with the judgment, we appreciate the able assistance provided by learned counsel Shri.C.V.Dharurkar, appointed to defend the appellant. We quantify the fees payable to the learned counsel appointed in the sum of Rs.5,000/- 12. Appeal stands disposed of accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 446-10