1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 98 OF 2003 VASANT SHIVAJI KHAVALE .. .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. .. RESPONDENT Mrs. Smita R. Gaidhani, Advocate (Appointed) for the appellant Mr. H. J. Dedhia, APP CORAM:-SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED :-25/1/2010 ORAL JUDGMENT:-(Per Smt. Ranjana Desai, J.) The appellant (“the accused”) was tried by the Court of II Additional Sessions Judge, Satara in Sessions Case No. 75 of 2002 for offences punishable under Sections 302, 504 and 506 of the Indian Penal Code (“IPC” for short) for having committed the murder of the complainant’s wife namely Sitabai Buwa Khavale aged about 65 years (“the deceased”) in front of Sutarache Net situated at village Shindi, Taluka Man, District Satara on 8/3/2002 at about 2-30 p.m. 2 2. By the impugned judgment and order learned Sessions Judge has convicted the accused under Section 302 of the IPC and sentenced him to suffer R.I. for life. The accused is also sentenced to pay fine of Rs.1,000/- and in default of fine to undergo further R.I. for one month. The accused is acquitted of the offences under Section 504 and 506 of the IPC. Being aggrieved by the said judgment and order, the accused has filed this appeal. 3. It is necessary to begin with the facts of the case. According to PW 1 Buwa Dadu Khavale, on 8/3/2002 he and his wife, the deceased returned to village Shindi from Bhalawadi. It was about 2-30 p.m. They took their meal and were sitting near Sutarache Net. According to them Sutarache Net is situated near their house. The prosecution case further is that the accused came their and asked the deceased as to why she had practised witchcraft on him. On this the deceased replied that she had no reason to practice witchcraft as she had brought up the accused. On this the accused expressed that the deceased was making false statement. The accused was armed with an axe. According to the prosecution the deceased started running towards Sutarache Net. The accused chased her. The complainant followed the accused. The accused gave two blows on the head of the deceased with an axe as a result of which she fell on the ground. This incident was witnessed by PW 2 Nilu Kharat as he was proceeding towards weekly Bazar. The accused ran away from the spot of incident. One Dayanand Kharat and 3 Vilas Shinde arranged for a jeep. The deceased was taken to Dahiwadi Police Station in the said jeep. Statement of the complainant i.e. PW 1 was recorded. It was treated as FIR. On the basis of FIR the investigation was started. 4. The deceased was taken to the Civil Hospital, Satara. After 2/3 days the doctor advised that she be taken to Sasoon Hospital, Pune. She was accordingly taken there. She was indoor patient at Sasoon Hospital. She expired on 13/3/2002. Section 302 was added by the police to the offence alleged against the accused. After completion of the investigation the accused came to be charged as aforesaid. 5. In support of its case the prosecution examined as many as 6 witnesses. PW 1 Buwa Khavale, the complainant is the husband of the deceased. PW 2 Nilu Kharat is an eye-witness. PW 3 Sukhdeo Jadhav is a pancha to the inquest panchnama. PW 4 and 5 are the investigating officers who have given details of investigation and PW 6 is Dr. Milind Wabale, who had done the postmortem on the deceased. 6. The defence of the accused was of denial. According to the accused there was land dispute between PW 1 and his family. PW 1 gave a false report to the police to prevent the accused from demanding partition of the 4 joint family property. According to the accused the deceased herself fell on the stone and received injuries on her head when she ran towards him out of anger as he demanded share in the agricultural land, the house property and the sale proceeds of rooms. 7. After perusing the evidence on record learned Sessions Judge convicted the accused as aforesaid and hence this appeal. 8. We have heard Mrs. Gaidhani, learned advocate, who has been appointed to appear for the accused. She has very ably conducted the appeal. Learned counsel submitted that though the prosecution has recorded statements of as many as 13 witnesses, the prosecution did not examine independent witnesses. The prosecution examined PW 1 husband of the deceased and PW 2 who is the friend of PW 1. The prosecution story rests entirely on the interested testimony of PW 1 and PW 2. Non-examination of independent witnesses throws shadow of doubt on the prosecution case. Counsel further submitted that the prosecution has not established motive. The case of the accused is that on account of land dispute he has been falsely involved is probabilised. Counsel submitted that there is no discovery of weapon at the instance of the accused. The axe was handed over to the police by PW 1. This suggests that the accused did not use the axe to deal a blow on the deceased. Counsel submitted that nature of 5 injuries is not consistent with the prosecution story. She submitted that the accused is said to have used an axe. However, the postmortem notes do not indicate that the deceased had suffered any incised wounds. PW 6 Dr. Milind Wabale has stated that depressed fracture was possible if the body comes in contact with hard and blunt object. Counsel submitted that the doctor’s evidence disproves the prosecution case that the accused used an axe. Counsel submitted that evidence of PW 1 and PW 2 is not consistent. Whereas PW 1 states that the accused gave 2 to 3 blows. PW 2 states that the accused gave only one blow. Learned counsel submitted that in the circumstances, this is a fit case where benefit of doubt must be given to the accused and he must be ordered to be released forthwith. 9. Learned APP on the other hand submitted that there are two eye- witnesses in this case. Their evidence is consistent. He submitted that no case is made out for interference with the impugned judgment and order. 10. The prosecution case rests on the evidence of PW 1 and PW 2. PW 1 is the husband of the deceased. According to him on the date of incident they were sitting together after having their meals. The accused came to their house armed with an axe and asked the deceased as to why she was practising witchcraft on him. The deceased told the accused that since she had brought him up she had no reason to practice witchcraft on him. The 6 accused expressed that the deceased had made a false statement. The deceased started running towards Sutarache Net. The accused chased her. PW 1 followed the accused. The accused gave a blow on the head of the deceased with an axe due to which she fell down. The accused then gave a second blow with an axe on the deceased. According to PW 1 this incident was seen by Nilu Kharat. PW 1 has further stated that Dayanand Kharat and Vilas Shinde arranged for a jeep and he and the deceased were taken to Dahiwadi Police Station where his statement was recorded. The said statement Exhibit-12 is treated as FIR. The police referred him and the deceased to the hospital. 11. It is pertinent to note that the FIR is lodged promptly. We have carefully perused the cross-examination of PW 1. In the cross-examination it is suggested that PW 1 did not allow the accused and his father to stay in the ancestral house and, therefore, they were constrained to shift to the forest area. It is suggested that there was some dispute over the property between the two. It is further suggested that the accused asked for his share in the property, the deceased refused to give it and in a fit of rage she fell on the stone and sustained injuries. These suggestions have been categorically denied by PW 1. It is not possible for us to discard the evidence of PW 1. Despite searching cross-examination the defence has not been able to make any dent in his examination-in-chief. The story that the deceased fell on 7 stone and sustained injuries cannot be digested in view of the medical evidence to which, we shall soon come. Besides evidence of PW 1 is supported by PW 2 Nilu Kharat. PW 1 has clearly stated in his evidence that the incident in question was seen by Nilu Kharat. It is pertinent to note that there is no omission on this aspect. 12 PW 2 Nilu Kharat has corroborated PW 1 as regards the incident in question. Learned counsel has laid stress on the fact that whereas PW 1 states that the accused gave 2/3 blows, PW 2 says that the accused gave one blow. To us this discrepancy appears to be minor which does not discredit the prosecution case. We have no hesitation in accepting PW 2 as a truthful witness. That takes us to the medical evidence. 13. Postmortem notes are at Exhibit-22. PW 6 Dr. Wabale has found following external injuries on the deceased. “1. Stitched wound 6 cms anterior to right ear 1” long 3 stitches present. 2. Stitched wound on parietal region horizontal 5 cm above eye brow starting from 3 cms Rt. Lateral to midle extending over lt parital region 7 cms long, 12 stitches present. 3. Right black eye. 8 4. Bed sore on buttock.” He found following internal injuries on the deceased: “1. Haematoma under scalp all over. Depressed fracture Right temporal frontal region 5 x 2 cms. Corresponding to ext No. 1. (2) Linior fracture horizontal starting from – tempor parietal suture, extending over right parietal and lt. Parietal bone measuring 12 cms long corresponding to exting. Meninges lacerated at right temporal region. Sub dural and sub arachnoid haemorrhage right temporal and frontal region with contusion of right temporal 2 x 1 cm and right frontal lobe measuring 4 x 2 cm corresponding to external injury no. 1 with evidence of Necrosis. Sub dural and sub arachnoid haemorrhage with contusion right parietal lobe 4 cm x 2 cm, left parietal lobe 3 x 2 cm with the evidence of Narcosis corresponding to external injury No. 2. Haemorrhagic clots in the left lateral ventric corresponding to external injury no. 2. Brain congested and oedematous. All other organs were congested external injury no. 1 and 2 with corresponding internal injury were sufficient to cause death in the ordinary course of nature individually and collectively.” 9 Dr. Wable has given the possible cause of death as death due to head injuries. In cross-examination Dr. Wabale has said that incised wound is possible if a sharp and cutting object or weapon is used for giving the blow. 14. It was argued that postmortem notes do not indicate that there was any incised wound and, therefore, axe was not used. We have already noted the nature of stitched wounds found on the head of the deceased. They indicate that incised wounds had been sutured. It is pertinent to note that the deceased was an indoor patient for 2 to 3 days. Therefore, the argument that axe was not used will have to be rejected. There is undoubtedly a depressed fracture. Dr. Wabale has said that depressed fracture is possible if the portion of body would come in contact with hard and blunt object. This in our opinion does not have any adverse impact on the prosecution story. Because there was a depressed fracture it cannot be presumed that axe was not used. It all depends upon the force with which the blow is given. Looking to the extent of stitch wounds it appears to us that there were incised wounds caused by the sharp edge of the axe which were stitched. The impact of the blow appears to have also resulted in depressed fracture. It cannot be said with mathematical precision that in such a situation there must be a crack fracture and not a depressed fracture. 15. It is well settled that when there is conflict between eye-witness 10 account and medical evidence, the eye-witness account overrides the medical evidence. Both the witnesses have clearly stated that the accused gave axe blows on the deceased. In the facts and circumstances of the case, we have no hesitation in believing them. It was urged that the deceased was stated to be running and the accused is said to have given blows from behind. Injuries on parietal region are not consistent with this story. This argument is difficult to accept. The deceased was a 65 years old lady. In the nature of things it would not be possible for her to run at a high speed to avoid the blow. The accused was aged about 35 years. The accused obviously must have overpowered the deceased. Landing of the blow on the parietal region is, therefore, not an impossibility. This submission of learned counsel must, therefore, be rejected. 16. It was urged that there is no discovery at the instance of the accused and it is the complainant who gave the axe to the police. The evidence of PW 1 indicates that after dealing blows on the deceased, the accused ran away. The accused must obviously have dropped the axe at the scene of offence. This circumstance cannot be taken against the prosecution. 17. It was urged that PW 1 and PW 2 were interested witnesses. Assuming PW 1 and PW 2 are interested witnesses it is not the law that conviction can never rest on the testimony of interested witnesses. It is 11 common knowledge that generally independent witnesses are reluctant to come to court to depose. If, the testimony of interested witnesses is consistent and the other evidence on record lends assurance to it, it can be safely accepted. In our considered opinion, the evidence of PW 1 and PW 2 and the evidence of PW 6 Dr. Wabale corroborate each other. The defence has not been able to probabilise its case. The prosecution has proved its case to the hilt. There is no merit in the appeal. The appeal is, therefore, dismissed. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.) 12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 98 OF 2003 VASANT SHIVAJI KHAVALE .. .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. .. RESPONDENT Mrs. Smita R. Gaidhani appointed advocate for the appellant Mr. H. J. Dedhia, APP CORAM:-SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATED :-25/1/2010 OPERATIVE PART OF THE JUDGMENT: For the reasons stated in the Oral Judgment, this court has dismissed the appeal. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.) 13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 98 OF 2003 DATE : -25th January, 2010 Submitted for approval. THE HON'BLE (SMT.) JUSTICE RANJANA DESAI: THE HON'BLE (SMT.) JUSTICE : MRIDULA BHATKAR 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or ) not? ) 3. Whether Their Lordships wish to ) see the fair copy of the Judgment? ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )