KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 363 OF 2004 Ananta Gana Waghe ... Appellant vs. The State of Maharashtra ..Respondent Mr. A.G. Toraskar (appointed) for the appellant. Smt. V.R. Bhosale, APP, for the State. CORAM: P.B. MAJMUDAR & MRS. MRIDULA BHATKAR, JJ. DATE: JULY 29, 2011 ORAL JUDGMENT: (Per P.B. Majmudar, J. ) This appeal is directed against the judgment and order of conviction and sentenced recorded by the IInd Ad-hoc Additional Sessions Judge, Kalyan, dated 18th October, 2002 in Sessions Case No. 40 of 1999. 2. By the impugned judgment, the learned Sessions Judge convicted the appellant-accused for an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment KPP -2- for life. In addition, the accused was directed to pay fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for six months. 3. The case of the prosecution is that one Baliram Chandrakant Bhane was the owner of a brick kiln located at village Mauje Arawali, adjoining to Kalyan-Haji Malang Road. The accused, along with his wife, and others used to reside on the said brick kiln as labourers. On 27th August, 1998, at about 3.30 a.m., Baliram Chandrakant Bhane lodged a report to the Manpada Police Station about the death of wife of one of his labourers viz. Ananta Gana Waghe (present accused). On the basis of his report, case of accidental death was registered at the said Police Station. The inquiry was entrusted to PSI Ramwanshi of the said Police Station. The said Police Officer proceeded to the spot to prepare inquest panchanama of the dead body and the dead body was sent for post- mortem along with police report to Rukminibai Hospital, Kalyan. A spot panchanama was prepared as per the spot shown by said Baliram Bhane. During the inquiry under Section 174 of the Criminal Procedure Code, PSI Ramwanshi recorded the statement of accused, one Tarabai Waghe, who was residing in the neighbouring area and her husband Kundlik Waghe. Statement of said Baliram Bhane was also recorded. On the basis of the said statements, PSI Ramwanshi lodged a First Information Report (FIR) KPP -3- against the accused at the Police Station. The same was recorded by PSI M.S. Thite and on the basis of the same, an offence was registered at CR No. I-180/98 under Section 302 of the Indian penal Code against the accused. The accused was arrested subsequently and investigation was entrusted to one D.R. Thube, PI (Crime). The said Investigating Officer recorded the statement of the eye witnesses as well as the statement of Baliram Bhane. The clothes of the deceased were seized under a panchanama. The accused was referred to the Medical Officer, Rukminibai Hospital for collecting his blood sample and for his clinical examination. The Investigating Officer recorded supplementary statement of two eye witnesses. On completion of investigation, the charge-sheet was submitted on 25th September,1998, in the Court of Judicial Magistrate, First Class, Kalyan. The learned Magistrate thereafter committed the case to the Sessions Court and the same was registered as Sessions Case No. 40 of 1999. The Additional Sessions Judge framed charge against the accused on 28th June, 1999 at Exh.3. The accused pleaded not guilty to the charge and claimed to be tried. After trial, Court accordingly convicted and sentenced the accused as stated above. 4. In order to prove its case, the prosecution examined five witnesses. The prosecution examined one Pundlik Gopal Waghe (PW 1) at KPP -4- Exh.8. The said witness has stated in his evidence that Tarabai is his wife and on the date of incident, he was working in the brick kiln of one Baliram at village Airoli. The witness has further deposed that on that brick kiln, he along with his wife as well as the accused and his wife Nausibai were working as labourers. The witness has further deposed that on 26th August, 1998, he along with his wife and accused and his wife were present at the brick kiln and other labourers had gone for Ganesh festival. At the time of incident, there were quarrels between the accused and his wife. He further deposed that his hut and the hut of the accused are facing each other and from his hut he could watch the quarrel going on between the accused and his wife. He further deposed that the accused was beating his wife with wooden stick. He and his wife tried to intervene and separate the accused and his wife but the accused was not in a mood of listen to them. The witness further stated that the accused continued to beat his wife. Subsequently it was noticed that there was silence in the hut of the accused. The witness had informed the said fact to his employer Baliram Seth and pointed out the said incident. Subsequently, Baliram informed the witness that the accused had murdered his wife. In the cross-examination, the witness denied the suggestion that at the time of Ganesh Festival and Diwali festival, all labourers used to take advance from the employer and used to go to their KPP -5- villages for celebrating the festival. The witness denied the suggestion that he decided to go for Ganesh festival at the time of the incident. In the cross-examination, the witness has stated that his statement was recorded at the Police Station. 5. The prosecution has examined another witness viz. Tarabai Kundlik Waghe (P.W.2) at Exh.9. The said witness has stated that she is acquainted with the accused and his wife viz. Nausibai. According to the said witness, she was in her hut when the quarrel took place between the accused and his wife. She tried to intervene by asking the accused not to beat his wife but told her that it is a domestic matter and she should not intervene. According to the said witness, the accused went on beating his wife with the stick. The witness has further stated that in the meanwhile her employer Baliram arrived at about 10.00 p.m. and he informed them that Nausibai had died in her house due to beating by her husband with stick. In the cross-examination, this witness has stated that it is true that all huts were constructed with bricks with roof of giate sheets and each hut was having kachcha door. 6. The prosecution then examined Bhaskar Chiluram Ramwanshi (P.W.3) at Exh. 10. This witness has stated that in the year 1998, he was KPP -6- attached to Manpada police Station as PSI. On 27th August, 1998, Baliram Chandrakant Bhane lodged a report to the Police Station stating that wife of Anant Jana Waghe had died due to some accident. The witness has further stated that one Mr.Chavan was the SHO. He reduced his report into writing. On the basis of the same, accidental death was registered and he was entrusted with the inquiry. The witness further deposed that thereafter he took 2 panch witnesses and went to the spot where the dead body was lying. As per the evidence of the said witness, dead body was lying in a hut near the brick kiln and the accused was present near the dead body and it was the dead body of his wife Nausibai Ananta Wagh. The said witness has thereafter recorded the statements of the witnesses and prepared inquest panchanama. The witness thereafter sent the body to Rukminibai Hospital, Kalyan. The said witness has prepared a spot panchanama and seized one bamboo stump lying on the spot. Thereafter, as pointed out earlier, after considering the statement of the witnesses and medical certificate, an opinion was formed that the deceased died due to beating by the accused and accordingly he lodged the FIR at the Police Station at Exh. 15. According to the said witness, the investigation was thereafter entrusted to one PI Shri D.R. Thube who died subsequently. The witness has also identified bamboo stick shown to him which is Article No.1. Nothing substantial has come out in his cross-examination. KPP -7- 7. The prosecution has examined Dr. Ashok Narayan Bhide (P.W. 4) at Exh. 16. He stated that on the relevant day i.e. 27th August, 1998 he was attached to Rukminibai Hospital at Kalyan as Medical Officer. He received the dead body of deceased Nausi Ananta Wagh from Manpada Police Station for post mortem. As per the evidence of this witness, he found the following ante-mortem injuries. “1. Contusion over back below left scapulla to illiac bone blackish discollouration bone. 2. Contusion over back right side of illiac bone blackish discollouration 3. Contusion below left side of eye Zygonatic region 3/4” x 3/4”. 4. Contusion over arms middle 1/3rd posterior side. 5. Contusion over thigh left laterally and posteriorly upto knee. 6. Contusion popial region posterioral region.” The doctor has further deposed in his evidence that on internal examination, he found that the thorax was open and it was full of blood. He stated that 3 to 6 ribs of left and 4 to 7 ribs of right were fractured and noticed right lung laceration inferior surface with puncture. This witness KPP -8- further stated that the injuries mentioned in Exh. 17 may be possible by bamboo stick shown to the witness. This witness has further stated that the deceased must have died 12 to 18 hours prior to the post mortem. The doctor has prepared post mortem notes in his own handwriting. In the cross-examination, the doctor has denied the suggestion that if a person fell from a height of 15 ft. only on one occasion the injuries mentioned in Exh. 17 are possible. Injuries mentioned in Column No. 20 may be possible if a person fell from a height but the same person should fall from the same height at least on two occasions. The doctor denied the suggestion that injuries mentioned in Column No. 17 in Exh. 17 are not possible by the bamboo sticks shown to the witness. On a question put by the Court to the doctor, the witness has stated that the injuries mentioned in column No. 17 are sufficient to cause death in ordinary course of nature due to corresponding injuries mentioned in column No. 20 of Exh. 17. 8. The prosecution lastly examined one Dilip Suryabhan Tayade(P.W. 5) at Exh. 20. The said witness was attached to Control Room at Kalyan in August, 1998. The said witness has stated that he had helped PSI Thube who carried out the investigation as the witness was his writer during investigation of the offence. The witness has stated that KPP -9- PI Thube is dead since about one to one and half years. On a question put by the Court, the witness has pointed out in his evidence that the inquest panchanama at Exh. 11 is in his own handwriting and spot panchanama Exh. 14 is in his handwriting. Both are signed by PI Thube. 9. On the basis of the evidence on record, the learned Sessions Judge came to the conclusion that the deceased died homicidal death and in view of the evidence given by two eye witnesses it is established that the accused committed the murder of his wife and accordingly convicted and sentenced the accused as stated above. 10. Mr. Toraskar, learned counsel appearing for the accused, submits that it is not possible to believe that the eye witnesses must have seen the incident as they were inside their hut. It is submitted that the prosecution has not examined the employer Baliram Bhane. It is further submitted that in any case since the accused had no intention to commit murder of his wife, the case may fall under Section 304 Part-I of IPC. 11. Learned Additional Public Prosecutor, on the other hand, submitted that the prosecution has proved its case beyond reasonable doubt that the accused has committed the murder of his wife without any KPP -10- reason. It is further submitted that the accused has committed this heinous crime and committed murder of his wife and, therefore, the provisions of Section 300 IPC are clearly attracted in this case. 12. We have heard the learned counsel for the accused and the learned APP. We have also gone through the evidence produced by the prosecution and have also gone through the judgment of the learned Sessions Judge. 13. It cannot be disputed that PW1 and PW2 and the accused were residing in the same vicinity as all of them were labourers and working at the brick kiln owned by Baliram Bhane. PW 1 and PW 2 heard the shouts from the opposite hut and witnessed the incident of beating his wife by the accused. The distance between the house of the accused and PW1 and PW 2 is only a stone throw distance and it was most natural on their part to witness such incident which is happening at nearly place i.e. just adjacent to their hut. It has come in evidence that there was no pucca door attached to the hut as it was only a kachcha door. There were hardly any other residents in the area, as per the evidence led by the prosecution. It was most natural on the part of these two witnesses to see this incident which has happened in the nearby place of their residence. Both these KPP -11- witnesses have clearly given their version as to how they saw the deceased beating his wife. In our view, the evidence of these two witnesses can be trustworthy especially when both these witnesses had no enmity with the accused in any manner nor any suggestion is also put to them in this behalf. There was no reason for them to implicate the accused falsely in this case. In our view, the learned trial Judge has rightly relied upon the evidence of these two witnesses for coming to the conclusion that the accused has committed the crime in question by giving stick blows on the vital part of the body of the deceased. As per the medical evidence, there were fractures on the ribs of the deceased which was suggestive of the fact that the deceased was subjected to number of blows on her chest which ultimately resulted into the death of the deceased. The evidence of PW1 and PW2 who have seen the incident is corroborated by the evidence of PW4. PW4 Dr. Ashok Bhide in his evidence has clearly stated that the injuries mentioned in Exh. 17 might be possible by the bamboo stick which was shown to the witness. On a query by the Court, the doctor has stated that the injuries mentioned in Column No. 17 in Exh. 17 are sufficient to cause death in ordinary course of nature due to corresponding injuries mentioned in column No. 20 of Exh. 17. It is also required to be noted that at the time when PW 3 was investigating the case, he had gone to the house of the deceased. He had noticed that the KPP -12- accused was present near the dead body of his wife. In a given case, if the husband finds that somebody has killed his wife, he would normally try to inform the police or may try to take the injured person to the hospital at the earliest. The conduct of the accused after the incident is absolutely unnatural as he never tried to inform the police nor he tried to take the deceased to the hospital. The Investigating Officer sent the dead body to the hospital. Considering the aforesaid conduct of the accused coupled with clear cut evidence of PW 1 and PW 2 who have seen the incident, in our view, the prosecution has established its case beyond reasonable doubt that it is the accused and accused only has committed the aforesaid crime. It is no doubt true, as argued by the learned counsel for the accused, that there is some improvement made by PW1 in his evidence before the Court by stating that PW1 he tried to rescue the deceased when accused was giving stick blows. Even if this aspect has not been disclosed by him to the police, the fact that the evidence given by him regarding witnessing the incident and seeing the accused beating his wife cannot be brushed aside. In our view, the prosecution has proved its case by sufficient evidence coupled with the fact that the evidence of PW 1 and 2 is clearly corroborated by the medical evidence on record. As stated above, the doctor has clearly deposed that the injuries in question are sufficient in the ordinary course to cause death and the same were KPP -13- possible by the article which was recovered by the police from the scene of offence. Considering the aforesaid aspect of the matter, in our view, the learned trial Judge has rightly recorded the order of conviction and there is sufficient evidence on record by which the guilt of the accused can be said to have been established beyond reasonable doubt. The accused has committed the murder with the intention of causing such bodily injury as he knew that the same would likely to cause the death of the deceased. It is required to be noted that it is not a case where the accused gave one single blow or couple of blows. As per the evidence on record, it is clear that various of blows were given by the accused and there were various fractures on the ribs of the deceased and the lungs were also damaged due to such beating. In our view, the learned Sessions Judge has, rightly convicted the accused for an offence punishable under Section 302 IPC and sentenced him as stated above. We accordingly do not find any substance in this appeal. The same is dismissed. P. B. MAJMUDAR, J. MRS. MRIDULA BHATKAR, J.