1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.303 OF 2006 Sadashiv Bhimrao Parit @ Namdevkar ..Appellant Age : 45 years, Occu : labour R/o.Datta Nagar, 10th Lane, Ichalkaranji V/s. The State of Maharashtra ..Respondent Mr.S.N.Bhosale, advocate, for appellant Mrs.M.M.Deshmukh, A.P.P, for the State CORAM : F.I.REBELLO & SMT.V.K.TAHILRAMANI, JJ. DATE : 11TH APRIL, 2008 JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) . The appellant/original accused has preferred this appeal wherein he has challenged the Judgment and Order dated 30th September, 2005 passed by the learned Additional Sessions Judge, Ichalkaranji in Session Case No.13 of 2005. By the said Judgment and Order, the learned Sessions Judge convicted the 2 appellant/original accused under Section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine of Rs.500/- in default to undergo S.I. for 15 days. 2. The prosecution case briefly stated is as under :- The appellant along with his wife and daughter Meenakshi (deceased) was residing at Datta Nagar, Ichalkaranji, District Kolhapur. Meenakshi(deceased) was the daugher of the appellant. Both the legs of Meenakshi were paralysed. Hence, she was not able to walk and as Meenakshi was handicapped she used to lie on the cot. The mother of Meenakshi used to look after her. The mother of Meenakshi used to do household work. When she went to do household work the appellant used to stay at home to look after Meenakshi. Meenakshi required constant medical treatment. The appellant was fed up of spending money for the treatment of Meenakshi and on account of that he murdered Meenakshi by pressing her neck. This was witnessed by P.W.1 Bandopant Dnyandev Kodale, P.W.2 Sou.Shubhangi Sunil Buchade, P.W.3 3 Raghunath Vyankappa Dhadoti and P.W.4 Uday Hindurao Kodale. P.W.2 Sou.Shubhangi was the neighbour of the appellant. At about 7.45 P.M. her nephew who was playing on the road came running and told her that father of Meenakshi was standing on the chest of Meenakshi. She rushed to the house of the appellant. She saw that Meenakshi was lying on the cot in supine position and the appellant was standing on her body with one leg on the neck of Meenakshi. She started shouting hence, some persons gathered on the spot. They called Shivsena persons. P.W.3 Raghunath Dhadoti was proceeding to the Shivsena office. At about 7.45 to 8.00 P.M. he saw that four to five ladies were shouting near the house of the appellant. When he went near he saw that the appellant was trampling on the body of his daughter. Raghunath telephoned P.W.1 Bandopant Kodale on his mobile. Bandopant was present in Shivsena office. At that time P.W.5 Rajaram Annappa Chorage was also present in the Shivsena office. Both Bandopant and Rajaram went to the house of the appellant. They saw the accused trampling on the body of his daughter. On seeing them the appellant stated “Come Shivsena 4 leader. Are you going to beat me ? I am tired of spending money in the hospital for my daugher, and therefore, I have killed her.” Bandopant told the appellant to step down from the body of his daugher. However, the appellant refused to do so. Bandopant informed the police, who arrived within a few minutes. The police made the appellant step down and took him in custody. Bandopant lodged his F.I.R (Exh.22). Thereafter, investigation commenced. After completion of investigation the chargesheet came to be filed. 3. The charge came to be framed against the appellant/accused under Section 302 of the Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. According to him, he had gone outside the house. He was not present in the house at the time of the incident. When he returned home, he found that Meenakshi was dead. He has stated that he has been falsely implicated by P.W.1 as he refused to enter in the party of P.W.1. Hence, false complaint came to be lodged against 5 him. On going through the evidence adduced by the prosecution the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 of the appeal. Hence, this appeal. 4. Heard Mr.S.N.Bhosale, advocate for the appellant and Mrs.M.M.Deshmukh, A.P.P. for the State. We have perused the Judgment and Order passed by the learned Sessions Judge as well as the record pertaining to the present case. After giving anxious consideration to the matter we are of the opinion that the learned Sessions Judge has rightly convicted the accused under Section 302 IPC. 5. That, Meenakshi died a homicidal death, is clear from the evidence of P.W.6 Dr.Ashok Mahajan who conducted the Postmortem on the body of Meenakshi. Dr.Mahajan noticed the following injuries on the body of Meenakshi. “(1) Linear abrasion seen over anterior surface of 6 neck just above the thyroid cartilage, transverse in direction. Size 3 cm X 0.5 cm. Red coloured, with dired blood marks. It curved inferiolaterally over right lateral surface of neck for 2.5 cm and became narrow. (2) Linear abrasion over anterior surface of neck, just below the thyroid cartilage, transverse in direction, size 3 cm X 0.5 cm. red coloured, with dired blood marks. It curved superiolaterally at right lateral surface of neck at right end, for 3 cm and become narrow and approximated with right end of injury No.1. (3) Five linerar abrasions seen over right lateral surface of neck, oblique in direction, starting from the injury No.2 size 1.5 cm X 0.2 cm. red coloured. (4) Six linear abrasions over left lateral surface of neck, beginning from the left lateral end of injury No.2, oblique and upward, in directions. Size 1.5 cm X 0.2 cm. red coloured. (5) Abrasion over right lateral surface of neck and sterno cleido mastoid muscle at right lateral end of injury No.1 and 2. It is oval in shaped. Size 3 cm X 2 cm red coloured, with dried blood marks. (6) Multiple pointed abrasions seen at upper end of injury No.5. Size 1 cm x 0.7 cm. red coloured. (7) Single abrasion over right cheek size 0.5 cm x 0.5 cm. red coloured. 7 (8) Crescentic abrasion over the right mastoid region. Size 1 cm x 0.5 cm red coloured. (9) Crescentic abrasion over the right lateral surface of neck, above the mid-point of right clavicle, verticle in direction in direction, size 1 cm x 0.5 cm red coloured.” Dr. has also stated that “The face was swollen and cynosed. Both the eyes open but partly and promonent. Mouth open with the tongue protruded between teeth. It is swollen and bruised. Dried up dirbbled marks of saliva seen over face at left angle of mouth. These features indicate asphyxia due to strangulation.” The injuries on the body of Meenakshi clearly show that it was a case of homicidal death. It may also be stated here that the defence has not denied that it is a case of the homicidal death however, the case of the appellant is that he has not caused the death of Meenakshi. 6. As far as involvement of the appellant in the incident is concerned, we are satisfied that it has been established to the hilt through the credible ocular evidence rendered by P.W.1 Bandopant 8 Kodale, P.W.2 Sou.Shubhangi Buchade, P.W.3 Raghunath Dhadoti and P.W.5 Rajaram Chorage. P.W.2 Sou.Shubhangi Buchade stated that at about 7.45 P.M. her nephew who was playing on the road came running and told her that father of Meenakshi was standing on the chest of Meenakshi. She rushed to the house of the appellant. She saw that Meenakshi was lying on the cot in supine position and the appellant was standing on her body with one leg on the neck of Meenakshi. 7. Shubhangi started shouting hence, some persons gathered on the spot. They called Shivsena persons. P.W.3 Raghunath Dhadoti was proceeding to the Shivsena office. At about 7.45 to 8.00 P.M. he saw that four to five ladies were shouting near the house of the appellant. When he went near he saw that the appellant was trampling on the body of his daughter. Raghunath telephoned P.W.1 Bandopant Kodale on his mobile. Bandopant was present in Shivsena office. At that time P.W.5 Rajaram Annappa Chorage was also present in the Shivsena office. Both Bandopant and Rajaram 9 went to the house of the appellant. They saw the accused trampling on the body of his daughter. On seeing them the appellant stated “Come Shivsena leader. Are you going to beat me ? I am tired of spending money in the hospital for my daugher, and therefore, I have killed her.” Bandopant told the appellant to step down from the body of his daugher. However, the appellant refused to do so. Bandopant informed the police, who arrived within a few minutes. The police made the appellant step down and took him in custody. 8. From the discussion above it is seen that P.W.1 Bandopant Kodale is also an eye witness to the incident. The evidence of P.W.3 Raghunath Dhadoti and P.W.5 Rajaram Chorage is on the same lines as that of P.W.1 Bandopant Kodale. Nothing has been elicitated in the cross examination of these four witnesses so as to disbelieve their testimonys. Hence, we have no hesitation in placing reliance on the evidence of these four eye witnesses. The evidence of these four witnesses establishes beyond doubt that it was the appellant alone who is responsible for causing the death of Meenakshi. 10 9. In a case where there are eye witnesses motive to commit crime would not be of much significance, however, in the present case the prosecution has also proved motive for the appellant to commit the murder of Meenakshi. Meenakshi was the daugher of the appellant. She was about 13 years old at the time of the incident. Both the legs of Meenakshi were paralysed hence, she was not able to walk and she was bed ridden. The appellant was fed up of spending money for the medical treatment of Meenakshi. On account of this he murdered her. The motive has been brought out in the evidence of the witnesses. P.W.1 Bandopant Kodale and P.W.5 Rajaram Chorage have stated that when they went to the house of the appellant. They saw the appellant standing on the body of Meenakshi and his one leg was on neck of Meenakshi. At that time on seeing them the appellant told these witnesses. “come Shivsena leader. Are you going to beat me ? I am tired of spending money in the hospital for my daughter, and therefore, I have killed her” 11 P.W.2 Sou. Shubhangi Buchade who was present at the spot has also stated that the appellant was saying that he was tired of giving medical treatment to his daughter, therefore, he has killed his daughter. The same thing has been repeated by P.W.3 Raghunath Dhadoti. Thus, through the evidence of these four witnesses the prosecution has also brought on record the motive for the appellant to commit the crime. 10. The defence of alibi has been raised by the appellant. The learned advocate for the appellant has stated that at the relevant time the appellant was not at home. He submitted that the appellant who is 'Dhobi' by profession had gone out of the house to deliver clothes and when he came home he found that his daugher was murdered. Except his bare statement that the appellant was not at home, nothing has been brought on record to prove the defence of alibi taken by the appellant. On the other hand, the prosecution has proved that the appellant was present in the house and he has caused the murder of his daughter. The same has been proved by the prosecution through 12 the evidence of P.W.1 Bandopant Kodale, P.W.2 Sou.Shubhangi Buchade, P.W.3 Raghunath Dhadoti and P.W.5 Rajaram Chorage. Looking to the clear and cogent evidence of these witnesses we find that there is no merit in the defence of alibi taken by the appellant. 11. Looking to all the evidence on record we have no hesitation in coming to the conclusion that the learned Sessions Judge has rightly convicted and sentenced the appellant under Section 302 of the Indian Penal Code. 12. We may state that Shri.S.N.Bhosale who is appearing for the appellant has mediculously prepared the matter and he has also ably argued the matter. 13. In the result, the Judgment and Order dated 30th September, 2005 passed by the learned Additional Sessions Judge is confirmed. The appellant who is in jail shall serve out his sentence. Appeal is dismissed. 13 (F.I.REBELLO, J.) (SMT.V.K.TAHILRAMANI, J.)