1 Cri.Appeal No.499 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.499 OF 2010 Kashinath Vishwanath Lulekar, Age 46 years, Occu. R/o Ner, Taluka and District Jalna, now convict no.7013, in Central Jail at Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mrs Manjusha S. Jagtap-Ware, Advocate (appointed) for the appellant Mrs S.D.Shelke, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 11th August 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for 15 days, by the Additional Sessions Judge-2, Jalna by judgment dated 21.7.2010, in Sessions Case No.115 of 2009, by this appeal questions the correctness of his conviction and sentence. Since this appeal was presented through jail, we had appointed Mrs Manjusha Jagtap, learned Counsel to represent the appellant in this appeal. 2 Cri.Appeal No.499 of 2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.8 P.S.I. Ganpat Rahire, who was attached to Police Station, Maujpuri, recorded the complaint of P.W.1 Sanjay at Exh.43 on 8.4.2009. On the basis of the complaint at Exh.43, an offence vide Crime No.31 of 2009 under Section 302, 506 of the Indian Penal Code came to be registered. Upon registration of the offence, P.W.8 P.S.I. Rahire immediately rushed to the scene of the offence and drew the scene of the offence panchnama at Exh.16 in the presence of panch witnesses. From the scene of the offence, one quilt stained with blood came to be seized. The inquest panchnama of dead body of deceased Sunita came to be drawn in the presence of panchas at Exh. 15. Clothes of deceased Sunita came to be seized under seizure memo at Exh.31. The clothes of deceased Sunita comprised of Article 2 Petticoat, Article 3 Saree and Article 4 Blouse. The appellant/accused came to be arrested on 9.4.2009 at about 12.30 p.m. The clothes of the appellant/accused, which were found stained with blood came to be seized under seizure memo at Exh.32 in the presence of panchas. The clothes of the appellant are Article 5 – Shirt and Article 6 – Trouser. During custodial interrogation on 10.4.2009, the appellant expressed his willingness to point out the place where the axe was thrown by him. Accordingly, memorandum at Exh.33 came to be drawn in the presence of P.W.6 Pandharinath and another panch. The appellant led the Police and the panch to a Well situated in 3 Cri.Appeal No.499 of 2010 the field of one Premsing Rathod. P.W.4 Babarao Kothewar, a Swimmer was called who entered the Well and produced an axe from the Well. The said axe, which was found to be blood stained, was seized under seizure memo at Exh.34 in the presence of panchas. The seized property was referred for chemical examination and was carried by P.W.3 Pratap Ghodke, a Police Constable along with the requisitions at Exh.19 and 20. The reports of the Chemical Analyzer are at Exh.44 and 45, which show that the clothes of deceased were stained with blood of “O” group while the clothes of the appellant were stained with human blood though the group could not be determined. The axe Article 7 was also found stained with human blood but the group could not be determined. Further to the completion of investigation, a charge sheet against the appellant/accused came to be filed. 3. Trial Court vide Exh.3 framed charge against the appellant for an offence punishable under Section 302 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The defence of the accused was of plain denial. The trial Court, upon appreciating the evidence, came to the conclusion that prosecution had proved the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant. 4. In order to effectively deal with the submissions advanced before us by Mrs Manjusha Jagtap, learned Counsel for the appellant, who has 4 Cri.Appeal No.499 of 2010 very ably argued the appeal, and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of the prosecution wtinesses. 5. P.W.1 Sanjay son of appellant did not support the prosecution though he was the first informant. According to P.W.1 Sanjay at the time of the incident he was studying in 8th Standard. On that day at about 9.00 p.m. after taking dinner, he, his parents and sister retired to bed. On the next day at about 5.00 in the morning, he was awakened and noticed his mother lying in a pool of blood on the floor. Sanjay also noticed that his mother had died. He has admitted that he had not witnessed the incident and had also not lodged a report to the Police. In cross-examination on behalf of the prosecution, he has admitted that his father was suspecting the chastity of his mother. He has denied the other suggestion that the appellant/accused had assaulted deceased Sunita by an axe. Though he was confronted with portion marked “A” and “B”, he has denied the same. Similarly, P.W.2 Rameshwar, a panch to the scene of the offence and a neighbour of the appellant also did not support the prosecution. P.W.4 Babarao, P.W.5 Maroti also did not support the prosecution. 6. Post mortem on the dead body of deceased Sunita was performed by P.W.7 Dr.Sudhakar Maske. P.W.7 Dr.Maske noticed the following external injuries on the dead body of Sunita. 5 Cri.Appeal No.499 of 2010 (i) Incised wound cervico thoracic spine C7 T1 complete transection plus 12 x 10 x 4 cm transverse; (ii) Incised wound inter scapular region, 10 x 1 x 1 cm evidence of active bleed (Transverse) (iii) Incised wound Darsolumber spine 10 x 4 x 8 cm evidence of active bleed at the level of T 12, L1 junction partial cut section; (iv) Incised wound at left lumber region infra thoracic region 10 x 4 x 4 cm evidence of active bleed. According to him, all the injuries were ante mortem. On internal examination he noticed evidence of fracture of rib on left side and evidence of complete transection of cervico thoracic spine C7 T1. He also noticed evidence of partial transection of D. lumber spine T12 L1. Dr.Maske opined that the injuries were sufficient in ordinary course of nature to cause death and deceased had died on account of complete transection of cervico spine and partial transection of DL spine. P.W.7 Dr.Maske was not cross-examined at all on behalf of the appellant. 7. This is a case resting on circumstantial evidence and the circumstances, which the prosecution has proved against the appellant are : 6 Cri.Appeal No.499 of 2010 (i) The appellant was suspecting chastity of deceased Sunita; (ii) The appellant was present in the house when Sunita had died; (iii) Deceased Sunita died a homicidal death; (iv) An axe came to be recovered at the behest of the appellant, which was found to be stained with human blood; (v) The clothes of the appellant/accused were stained with blood; (vi) No explanation whatsoever has been offered by the appellant in respect of injuries sustained by deceased, who was residing in the house of the appellant. 8. The incident had occurred in the wee hours of morning of 8.4.2009. P.W.1 Sanjay has deposed about the presence of the appellant. The appellant has also not taken any defence of alibi. Apart from just plain denial under his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant/accused has not offered any explanation for the injuries sustained by deceased Sunita. Deceased Sunita had died a homicidal death in the house of the appellant in the wee hours of 8.4.2009. An axe came to be recovered at the behest of the appellant/accused, which was found stained with human blood. Prosecution has examined P.W.6 Pandharinath, who has remained unshaken in cross-examination. Similarly, factum of recovery has been proved by PSI Rahire. The clothes of the appellant/accused, which were seized at the time of his arrest were found stained with human blood. No explanation whatsoever has been offered by the appellant for presence of human 7 Cri.Appeal No.499 of 2010 blood on his clothes when admittedly he does not claim to have received any bleeding injury. 9. Mrs Manjusha Jagtap, learned Counsel for the appellant has urged before us that no reliance at all can be placed on the seizure of the blood stained clothes of the accused and the recovery of the axe from the Well, as the blood group on the axe and the clothes could not be determined by the Chemical Analyzer. The learned Counsel for the appellant has also urged before us that the axe Article 7 has not been identified by any witness, as the axe belonging to the appellant. In such circumstances, therefore, it is urged by the learned Counsel for the appellant that mere recovery of the blood stained axe would not implicate the appellant. The learned Assistant Public Prosecutor has supported the findings arrived at by the trial Court. 10. According to us, even if the recovery of the axe and the seizure of blood stained clothes of the appellant, as circumstances are kept aside, the circumstance that dead body of deceased Sunita was found in the house of the appellant and Sunita had died in the wee hours of morning of 8.4.2009 and the fact that the appellant/accused has not offered any explanation are the circumstances, which complete the chain of circumstances and exclude every hypothesis of the innocence of the accused and unerringly point to the guilt of the accused. The appellant has not claimed that any intruder had entered his house and had hacked his wife with an axe. In such circumstances, therefore, it 8 Cri.Appeal No.499 of 2010 is the appellant and appellant alone who has committed murder of his wife deceased Sunita. The reasoning of the trial Court, therefore, convicting the appellant/accused cannot be faulted with. 11. After giving our anxious consideration to the submissions advanced by the learned Counsel for the appellant, according to us prosecution has proved the offence against the appellant beyond reasonable doubt and no interference is called for in the present appeal. The present appeal being sans merit is, therefore, dismissed confirming the conviction of the appellant. 12. We quantify the fees payable to the learned Counsel appointed on behalf of the appellant at Rs.5,000/- (Rs.Five thousand). ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/499.10criapeal)