AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.385 OF 2005 Navnath Kashinath Jethitor, Bedhwar Peth, Milind Nagar, 181, Solapur, presently lodged at Yerawada Central Prison, Pune. ) ) ) ) .... Appellant (Orig. Accused) Versus State of Maharashtra ) .... Respondent (Orig. Complainant) Ms. B.P. Jakhade, advocate appointed for the appellant. Ms. M.M. Deshmukh, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 29TH JULY, 2008. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 11TH AUGUST, 2008. JUDGMENT:- (Per Smt. Ranjana Desai, J.) AJN 2 1. The appellant was tried in the Court of Sessions at Solapur in Sessions Case No.59 of 2002 for offences punishable under section 302 of the Indian Penal Code (for short, “the IPC”) and section 37(1) read with section 35 of the Bombay Police Act (for short, “the Police Act”). By the impugned judgment and order dated 22/10/2002, learned VIth Additional Sessions Judge, Solapur, acquitted him of the charge under section 37(1) read with section 35 of the Police Act. He, however, convicted him under section 302 of the IPC and sentenced him to suffer Rigorous Imprisonment for life and to pay fine of Rs.500/-, in default, to suffer Rigorous Imprisonment for one month. The said judgment and order is impugned in this appeal. For the sake of convenience, we shall refer to the appellant as “the accused” in this judgment. 2. Shortly stated the case of the prosecution is that deceased Fulabai, the wife of the accused was serving at S.T. Stand, Solapur as a sweeper on contract basis. The deceased and the accused were residing at 181, Budhwar Peth, Milind Nagar, Solapur along with their son Sanjay and daughter Babita. On 16/1/2002, the AJN 3 deceased was on duty at S.T. Stand, Solapur from 2.00 p.m. to 8.00 p.m. At about 5.30 p.m., the deceased went to her house and returned to S.T. Stand. She was sitting with Shantabai Kadlaskar, Annapurna Jadhav and Latabai Kapure at Platform No.8. According to the prosecution, the accused came there and asked the deceased to accompany him to their house. The deceased told him that she had just returned from the house. The deceased asked him as to what work he had with her. The accused told her that there are some guests at home and, therefore, she should accompany him to the house. The deceased, therefore, left the place with the accused. 3. According to the prosecution, after 10 minutes, Shantabai Kadlaskar and Annapurna Jadhav were going to answer nature's call to ladies lavatory. For that purpose, they had to cross gents lavatory. At that time, they saw a crowd gathered near gents lavatory. They went to see what is happening there. They saw that the deceased was lying in an injured condition. Therefore, Shantabai went to the police booth, which is situated at the S.T. AJN 4 Stand. PC Shankar Pawar, PN Lakshman Shinde and PC Kimbhune were present there. PC Pawar and PN Shinde immediately rushed to the place where the deceased was lying injured. They called the auto-rickshaw. When they were keeping the deceased in the auto-rickshaw, they asked her as to how she was injured. At that time, she told them that the accused had assaulted her with knife because he was suspicious about her character. PC Pawar and PN Shinde asked Shantabai and Annapurna to take the deceased to the Civil Hospital, Solapur. Accordingly, they went to the Civil Hospital with the deceased. Unfortunately, the deceased died on the way. PC Pawar and PN Shinde went to the house of the accused, but he was not there. They told the daughter of the deceased that the deceased was admitted in the hospital. PC Pawar and PN Shinde then went to the Civil Hospital, Solapur. They came to know that the deceased was dead. PC Pawar lodged the report of the alleged incident with the Faujdar Chawadi Police Station. The said report is at Ex-17. On his report, Crime No.5/2002 came to be registered under sections 302 and 504 of the IPC. PSI Sonawane took over the AJN 5 investigation. After completion of the investigation, the accused came to the charged as aforesaid. 4. In support of its case, the prosecution examined as many as 10 witnesses. PW-1 Shantabai and PW-4 Annapurna are the sweepers, who were sitting with the deceased by the side of Platform No.8 when the accused came and took the deceased away. PW-2 is PC Pawar, who rushed to the place where the deceased was lying injured, upon coming to know about the said fact through a lady sweeper. PW-3 is PN Shinde, who accompanied PW-2 PC Pawar to the place where the deceased was lying injured. PW-5 is Suresh Madge, who is pancha to memorandum of statement and discovery panchanama, Ex-30 and Ex-31 respectively. PW-6 is Nagnath Alkunte, who is pancha to Ex-33 under which clothes of the accused were taken charge of. PW-7 is Dr. Subhashchandra Sardar, who has done the postmortem on the deceased. PW-8 is PSI Sonawane, the Investigating Officer, who has given the details of investigation. AJN 6 5. The defence of the accused was one of denial. According to him, his relations with the deceased were cordial and he did not know who assaulted the deceased. His case is that the police have falsely involved him in this case. After perusing the evidence on record, learned Judge has convicted the accused as aforesaid and, hence, this appeal. 6. As Ms. Dandekar, who was appointed by the office to appear for the accused as amicus curie was absent, we appointed Ms. Jakhade to assist us. We have heard Ms. Jakhade, at some length. Ms. Jakhade submitted that there is no eye witness to the incident in question. The prosecution case entirely rests on oral dying declaration made by the deceased to the police constables. She submitted that the dying declaration does not inspire confidence. Learned counsel submitted that the evidence of PW-1 Shantabai and PW-4 Annapurna, who claim to be with the deceased when the accused took the deceased away is not consistent. They are not clear as to when exactly the alleged dying declaration was made. Learned counsel submitted that dying AJN 7 declaration recorded by the Special Executive Magistrate stands on a higher footing. In this case dying declaration is not recorded by the Special Executive Magistrate. It is risky to rely on the dying declaration made to the police constables. She submitted that learned Judge erred in relying on the alleged dying declaration. She submitted that apart from the alleged oral dying declaration, there is no other clinching evidence on record, which can point to the guilt of the accused. In the circumstances, according to learned counsel, the impugned judgment and order deserves to be set aside. 7. On the other hand, Ms. Deshmukh, learned A.P.P. submitted that the evidence of PW-1 Shantabai and PW-4 Annapurna is consistent. Both of them have consistently said that the police asked them to shift the deceased to the Civil Hospital and the deceased told the police that her husband assaulted her because he was suspicious about her character. Learned A.P.P. further submitted that the evidence of PW-2 PC Pawar and PW-3 PN Shinde is also consistent. Learned counsel submitted that on the AJN 8 knife recovered at the instance of the accused, there were blood stains of “B” group, which is the blood group of the deceased. Similarly, on the clothes of the accused, blood of ' B' group was found. She submitted that therefore there is sufficient evidence on record to prove the guilt of the accused. According to learned A.P.P., the prosecution has proved its case beyond reasonable doubt and, therefore, no interference is necessary with the impugned judgment and order. 8. PW-7 Dr. Sardar has done the postmortem on the deceased on 17/1/2002. Dr. Sardar noted the following injuries on the deceased, which are mentioned in Column No.17 of the postmortem notes. “1) Stab injury in the Vth inter costal space left side of chest just latral to sternum, vertical measuring 2½ c.m. x ½ c.m. cavity deep. Elleptical margins inverted clean cut regular gapping present, dried blood present near wound 11 c.m. away from left nipple. 2) Incised wound on right hand 2” away from right shoulder joint antirarly measuring 6 c.m. x 1 c.m. muscle deep margin clean cut regular gapping AJN 9 present vertical. 3) Incised wound on right hand thumb dorsal aspect 4” c.m. X ¼ c.m. muscle deep, margin clean cut regular gapping present vertical. All injuries are ante-mortem”. 9. According to Dr. Sardar, the cause of death of the deceased was due to shock and heamorrhage due to stab injury to heart. Dr. Sardar has produced the postmortem notes in the court, which are at Ex-10. When article 9 was shown to Dr. Sardar, he stated that the injuries received by the deceased are possible by the said article. Dr. Sardar also stated that in his opinion after sustaining the injuries mentioned in Column Nos.17 and 20 of the postmortem notes, the patient will survive for some time. Dr. Sardar has been cross-examined. However, he stood firm in the cross-examination. From the evidence of Dr. Sardar, it is established that the deceased died due to shock and heamorrhage due to stab injury to heart; that the injury was possible by muddamal article No.9 and after sustaining injuries, the deceased survived for sometime. AJN 10 10. PW-1 Shantabai is serving as a sweeper at main S.T. Stand, Solapur. She has stated that the deceased and PW-4 Annapurna were also working as sweepers at main S.T. Stand, Solapur. According to PW-1 Shantabai, on 16/1/2002, their duty hours were from 2.00 p.m. to 10.00 p.m. At about 5.30 p.m., the deceased went to have tea at her house. She also went to her house. After about an hour, she and the deceased came to S.T. Stand and joined the duty. According to PW-1 Shantabai, after completing her duty, she was sitting with PW-4 Annapurna, the deceased and one Kapure. At that time, the accused came there and asked the deceased to accompany him to their house. According to PW-1 Shantabai, the deceased told her that she had just come from the house. She asked him as to what work he has with her. Thereupon, the accused told her that some guests had come to their house. The accused took the deceased with him. PW-1 Shantabai has further stated that after 10 minutes, as she was going towards the bathroom with PW-4 Annapurna, she saw a crowd by the side of lavatory. Both of them went there. She saw the deceased lying there with injuries. Therefore, she called the AJN 11 police from the S.T. Stand. The police came there. They made enquiry with the deceased and the deceased told them that the accused had stabbed her due to suspicion about her character. According to PW-1 Shantabai, the police asked her and PW-4 Annapurna to take the deceased to the hospital. Therefore, they went to the Civil Hospital in an auto-rickshaw. At the Civil Hospital, the doctor examined the deceased and the deceased was declared dead. PW-1 Shantabai has been cross-examined at some length. An omission has been brought in her cross-examination that she had not stated before the police that immediately on reaching the scene of offence, the police made enquiries with the deceased and the deceased narrated the incident. It is pertinent to note that PW- 8 PSI Sonawane has stated that this omission is only in respect of the word “immediately”. Therefore, there is no omission regarding the basic fact that the deceased did make a statement to the police that her husband had assaulted her. We find the evidence of this witness to be cogent and reliable. 11. PW-4 Annapurna has also stated that on the relevant day, AJN 12 she was sitting with PW-1 Shantabai, the deceased and others by the side of Platform No.8. The accused came there. He called the deceased home. He told her that there were guests at home. The deceased told her that she had just come from the house. According to PW-4 Annapurna, the accused insisted that the deceased should go with him and, therefore, the deceased went with the accused. According to PW-4 Annapurna, as she and PW- 1 Shantabai were passing from the gent's lavatory while going to answer the nature's call, they noticed a crowd. Out of curiosity, they went there. They found the deceased lying there. They called the police. The police brought an auto-rickshaw and asked them to take the deceased to the hospital. According to PW-4 Annapurna, the police asked the deceased as to who had attacked her. The deceased told the police that her husband had attacked her because he was suspicious about her character. PW-4 Annapurna has been cross-examined at some length. We find that PW-4 Annapurna has stuck to this version in the cross-examination also. We find her evidence to be reliable. AJN 13 12. PW-2 PC Pawar has stated that the incident in question took place on 16/1/2002 at about 7.30 p.m. At that time, he was sitting at the Police Booth at S.T. Stand, Solapur along with HC Kimbhuvane and PN Shinde. According to him, a lady sweeper came to him and told them that one lady sweeper is lying in an injured condition near gents latrine. They went there and saw the deceased. She was having injuries on her chest and hand. According to PW-2 PC Pawar, he immediately called an auto- rickshaw. They kept the deceased in the auto-rickshaw with the help of others. When they were keeping the deceased in the auto- rickshaw, the deceased told them that her husband assaulted her because he suspected her character. They sent the deceased to the hospital with the lady sweepers. Thereafter, they went to the Civil Hospital, Solapur where they came to know that the deceased was dead. PW-2 PC Pawar has stated that he then went to Fouzdar Chavadi Police Station and lodged his report, which is at Ex-17. PW-2 PC Pawar has been cross-examined at some length. The defence has not been able to elicit anything in the cross- examination which can persuade us to discredit his testimony. AJN 14 13. Evidence of PW-2 PC Pawar is supported by PW-3 PN Shinde. He has stated that he was on duty at S.T. Stand, Solpaur from 8.00 a.m. to 8.00 p.m. He was sitting along with PW-2 PC Pawar at the Police Booth at about 7.30 p.m. At that time, PW-1 Shantabai and PW-4 Annapurna came there and told them that one lady sweeper is lying in an injured condition near the latrine. They went to the said place. They found the deceased lying with injury on her chest and hand. They called an auto-rickshaw and kept the deceased in the auto-rickshaw. According to PW-3 PN Shinde, the deceased told them that her husband assaulted her because he was suspicious about her character. He has confirmed that they sent two lady sweepers with the deceased to the hospital. The defence has not been able to make any dent in his evidence by cross-examining him. In our opinion, the evidence of PW-2 PC Pawar and PW-3 PN Shinde establishes that the deceased made oral dying declaration to them that her husband had assaulted her because he was suspecting her character. The evidence of these two constables is supported by the evidence of PW-1 Shantabai AJN 15 and PW-4 Annapurna. The deceased was taken to the hospital. She succumbed to death immediately and, therefore, it appears that there was no time to call the Special Executive Magistrate to record her dying declaration. In any case, in view of the judgments of the Supreme Court in Kulwant Singh & Ors. v. State of Punjab, 2004 AIR SCW 778 and Balbir Singh & Anr. v. State of Punjab, 2006 AIR SCW 4950, non recording of the dying declaration by the Special Executive Magistrate is not fatal to the prosecution case. Besides, this is not a case which solely depends on oral dying declaration. We shall soon advert to the other clinching circumstances. 14. It was argued by Mr. Jakhade, learned counsel for the accused that the deceased was so badly injured that she could not have made the dying declaration. We are not inclined to accept this submission. We have already noted that PW-7 Dr. Sardar has expressed his opinion that after sustaining the injuries mentioned in column Nos.17 and 20, the patient can survive for sometime. It, therefore, appears that the deceased survived for sometime after AJN 16 sustaining the injuries and made the dying declaration to the police. In the circumstances of the case, we have no hesitation in accepting the prosecution case that the deceased made the dying declaration to the police. 15. Chemical Analyzer's Report, Ex-27 states that blood group of the deceased was 'B'. As per Chemical Analyzer' s Report, Ex-45 blood group of the accused is 'O' . It is pertinent to note that PW-5 Madge, the pancha witness has stated in his evidence that on 18/1/2002, he was called to Fouzdar Chavadi Police Station at about 11.30 a.m. The accused was present at the police station. The accused told the police that he had concealed a knife at his house and he is ready to show that place. His statement was recorded, which is at Ex-30. According to PW-5 Madge, the accused took them near Suraj Lodge. He showed his house. They went inside the house. There was one iron cupboard. The accused took out a knife from the back of the cupboard. Panchanama in respect of this discovery is at Ex-31. PW-5 Madge has identified his signatures. It is pertinent to note that the AJN 17 Chemical Analyzer's Report, Ex-45 states that the blood found on the knife is of blood group 'B' . The Chemical Analyzer's Report, Ex-28 indicates that the blood stains of blood of group 'B' were found on the clothes of the accused, which were seized under panchanama, Ex-32. Since the blood group of the accused is 'O' and blood group of the deceased is 'B', finding of blood of group ' B' on the knife recovered at the instance of the accused and on the clothes of the accused establishes that he had stabbed the deceased and committed her murder. 16. After analyzing the evidence, we have no hesitation in recording our concurrence with the view taken by the trial court. We are of the view that the prosecution has established the guilt of the accused beyond reasonable doubt. No interference is necessary with the impugned judgment and order and, hence, the appeal is dismissed. [SMT. RANJANA DESAI, J.] [DR. D.Y. CHANDRACHUD, J.]